Remanded: January 8, 1997
FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT ON
Reversing the Workers' Compensation Court's order
that claimant submit to an independent medical examination by
a psychologist, the Supreme Court ordered the lower court to
reconsider its factual findings in the absence of evidence
from the IME.
Even factoring out the IME doctor's testimony, the
Workers' Compensation Court remained convinced that
claimant was malingering.
Even factoring out an IME doctor's testimony on remand
from the Montana Supreme Court, the Workers' Compensation
Court remained convinced that claimant was malingering, based
in part on the Court's perception that claimant was
untruthful and its finding of shortcomings in testimony from
to Decision on Remand
case is on remand from the Supreme Court. On appeal that
Court held that this Court had erred in ordering an
independent medical examination by psychologist Richard
Rogers, Ph.D., and in relying on testimony stemming from that
exam. It remanded the case for reconsideration. In
reconsidering, I am to disregard Dr. Rogers' testimony.
remanding, the Supreme Court said:
Since the court's conclusion that Blythe was malingering
was based partly on testimony to which there was no objection
and partly on inadmissible testimony, a question remains as
to what the court's findings of fact and conclusions of
law would have been absent Dr. Rogers' IME. We will not
substitute our judgment for that of the Workers'
Compensation Court as to weight of evidence on questions of
fact. Mennis v. Anderson Steel Supply (1992), 255
Mont. 180, 184, 841 P.2d 528, 530. Accordingly, we remand
this matter to the Workers' Compensation Court
for a reweighing of the evidence as to malingering;
contrasting the testimony of Blythe's experts, including
Dr. Stratford, with the testimony of EBI/Orion's
remaining expert, Dr. Faust. [Emphasis added.]
(931 P.2d 38 (Mont. 1997).) I have underscored the last
sentence because it suggests that my function on remand is
merely to weigh and contrast Dr. Stratford's testimony
against that of Dr. Faust. I do not believe my function is so
of this claim requires that I consider claimant's
credibility since, after all, Dr. Stratford's opinions
rest on what claimant told him. If those statements were
untrue, as this Court initially found, then the entire
foundation for Dr. Stratford's opinions is washed away.
While Dr. Stratford genuinely believed the claimant, his
belief is not binding on this Court, otherwise the
fact-finding function vested in the Court would be usurped by
a physician whose principal duty is to his patient and who
does not have the full benefit of all of the evidence
presented in a courtroom. Dr. Stratford candidly admitted
that psychiatrists are not particularly good at detecting
malingered psychosis. (Stratford Dep. 1 at 18.) Dr. Faust
agreed and testified regarding a study involving normal
individuals who feigned hallucinations and were admitted to
mental hospitals. "They were given a lot of medication
and not a single one of these pseudo patients was detected by
the professional staff." (Tr. at 503.) The courtroom has
historically been, and should still be, the anvil for
determining whether a witness is or was lying.
factoring out Dr. Rogers' testimony, I am still persuaded
that claimant is malingering. While my conclusion is not as
firm as it was with Dr. Rogers' testimony, there is still
an accumulation of other persuasive evidence which, in my
judgment, makes it more probable than not that claimant is
not suffering from a work-related, disabling mental disease,
and I have no hesitation in reaching that conclusion once
again. The shortcomings in Dr. Stratford's opinions still
remain. My perception of claimant as untruthful still
remains. I have no doubt that had I never heard Dr.
Rogers' testimony I would have reached the same result.
petitioner, EBI/Orion Group (EBI/Orion), is a workers'
compensation insurer which insured Community Medical Center
(Community) in Missoula on January 29, 1989. On that date the
respondent, Michael Blythe (claimant), who was working as a
certified respiratory therapy technician at Community, was
stuck by a needle which had just been used to draw blood from
an AIDS infected patient. (The incident will be referred to
as the "incident" or the "needle stick.")
In the years since, claimant has not tested positive for the
HIV virus, and there is no reasonable prospect that he was
infected by the needle stick. However, he claims that the
incident precipitated disabling psychosis and depression.
seeks a determination that the incident did not trigger
mental illness and that claimant is neither permanently
totally nor permanently partially disabled as a result of the
incident. In his response the claimant cross-petitions for a
determination that he is suffering from a disabling mental
condition which was caused by the incident. He asks the Court
to determine the nature and extent of EBI/Orion's
liability for compensation and medical benefits.
asserts that he suffers from psychosis and depression
triggered by the incident. He claims he has auditory and
visual hallucinations which have affected his ability to
concentrate and work. EBI/Orion asserts that claimant's
psychosis is malingered, i.e., he is faking mental illness in
order to obtain monetary compensation on account of the
incident. If claimant is malingering, then his claim for
compensation and medical benefits fails.
case came on for trial in Missoula on July 10, 1995. The
trial lasted three days. The trial transcript spans 857
was represented by Mr. Charles E. McNeil and Mr. Steven S.
Carey. Claimant was personally present during the trial and
was represented by Mr. Richard R. Buley. Counsel for both
parties were well prepared and did outstanding jobs in
presenting their cases. Their professionalism, and the
outstanding experts who testified, made this trial the most
interesting and riveting case over which I have presided.
Exhibits 1 through 9, 11 through 17, pages 1 through 5 and 17
through 24 of Exhibit 19, and Exhibits 20 through 22 were
admitted into evidence. Exhibits 10 and 18 were withdrawn.
Pages 6 through 16 of Exhibit 19 were refused.
Two depositions of claimant and two depositions of William
Stratford, M.D., were submitted to the Court for its
consideration. In addition, the parties submitted depositions
of Julie Gerberding, M.D., Sarah M. Baxter, Ph.D., Herman A.
Walters, Ph.D., Sally Gauer, Ann Frazier, David Faust, Ph.D.
and Richard Rogers, Ph.D. (Dr. Stratford's first
deposition taken March 30, 1995, will be referred to as
"Stratford Dep. I" and his second deposition taken
June 7, 1995, as "Stratford Dep. II."
Claimant's first deposition of September 1, 1994, will be
referred to as "Blythe Dep. I," and his second
deposition taken June 2, 1995, as "Blythe Dep.
II.") Dr. Rogers' deposition has not been considered
in reaching the findings that follow.
The following individuals testified at trial: Michael S.
Blythe, William Stratford, M.D., David Faust, Ph.D., Meridee
Lieberg, Kayln Ward, Gail Hay, William R. Goodrich, Richard
Rogers, Ph.D., Ron Simpson, William Triggs, Katherine
Spealman and Herman A. Walters, Ph.D. Dr. Rogers'
testimony has not been considered in reaching the findings
considered all of the evidence in this case, including the
exhibits, depositions, and trial testimony, the demeanor and
credibility of the witnesses, and the arguments of the
parties, the Court makes the following:
the time of trial, claimant was 46 years old. (Ex. 1.) He has
been married and divorced twice. (Tr. at 167.)
Claimant fancies himself as an intellectual. He has told
psychologists and psychiatrists that his IQ is between 131
and 135 and in the third standard deviation. (Id. at
104, 124.) He claims to have a library of 50, 000 books.
(Id. at 136.) He testified that he has six college
degrees and is only a few credits short of two additional
degrees. (Id. at 66.) He is a perpetual student.
(Id. at 69-70.)
Claimant's college course work included courses in
psychology. During the spring semester of 1985, he took an
introductory course in clinical psychology. (Ex. 4 at 2.) In
the winter and spring quarters of 1987 he took six different
psychology courses. (Id.) In the fall of 1987 and
the winter and spring of 1988 he took ten psychology courses.
In the fall of 1988 and winter and spring of 1989 he took
four psychology courses. (Id. at 2-3.) In June 1989
the University of Montana conferred upon him a bachelor's
degree with a major in psychology. (Id. at 3.) When
he was asked by Sarah Baxter, Ph.D., on October 25, 1989, to
interpret Rorschach cards, he commented that he had
previously seen all the cards and discussed them in one of
his classes. (Ex. 2 at 45.)
Claimant is a certified respiratory therapy technician and
has worked for 20 years as a respiratory therapist. He was
also certified as a physician's assistant in the early
1970s. (Tr. at 645-46.)
EBI/Orion presented records and testimony indicating that
during his childhood and teenage years the claimant engaged
in some criminal activities and had seen a psychologist or
psychiatrist. It also presented evidence that in 1971 he lied
in order to obtain a discharge from the Navy. I have given no
weight whatsoever to this evidence. It is remote in time and
there is no similar evidence for the nearly 20 years that
by Community Medical Center
Claimant was employed as a respiratory therapist at Community
from 1979 through March 19, 1991. (Ex. 14 at 12, 162.)
January 29, 1989, claimant stuck himself with a needle from
an arterial blood gas kit which had just been used to draw
arterial blood from a patient infected with AIDS. The needle
stick caused him to bleed. He self-treated his wound with
bleach, then sought treatment in Community Medical
Center's Emergency Room. (Tr. at 50-64, 742-43.) He was
visibly shaken by the incident. (Id. at 743.)
the time of the incident, Community Medical Center was
insured by EBI/Orion.
Claimant filed a claim for compensation. (Ex. 1.)
EBI/Orion accepted liability for the claim.
Claimant has pursued other claims arising out of the January
1989 incident. He filed a civil action against the
manufacturer of the arterial blood gas kit (Radiometer),
Community, and his supervisor. The action was dismissed and
the dismissal was affirmed on appeal in Blythe v.
Radiometer, 262 Mont. 464, 866 P.2d 218 (1993).
Dismissal of the action has no preclusive effect in this
Consequences of the Injury
suffered no permanent physical consequences on account of his
injury. The puncture wound healed without incident. Claimant
has consistently tested negative for the HIV virus (Blythe
Dep. I at 48-49), and the uncontradicted expert medical
testimony of Julie L. Gerberding, M.D. who specializes in HIV
transmission, shows that an HIV infection would have appeared
within three to six months after the needle stick.
(Gerberding Dep. at 10-11.) At the time of trial, claimant
was six years post-needle stick and still HIV negative. There
is no credible evidence that he continues to be at risk for
HIV and AIDS from the needle sick. Further, he does not have
any reasonable fear of actually contracting HIV or AIDS as a
result of the needle stick.
Allegations Concerning Psychological Consequences of the
While suffering no permanent physical harm from the 1989
incident, claimant contends that he has suffered disabling
psychological harm. He alleges that within weeks of the
incident he experienced panic attacks. (Ex. 17 at 17-19.) He
alleges that he became severely depressed and anxious. He
alleges that he then began having auditory and visual
hallucinations. All of this, he claims, led to a loss of
interest in life, abandonment or reduction of his lifelong
pursuits of physical fitness and education, an inability to
work, inattention to housekeeping, and prolonged periods of
issue squarely presented to the Court for decision in this
case is whether his symptoms and disability are real or
Four expert witnesses testified at trial, including Dr.
Richard Rogers. Dr. Rogers' testimony has been
disregarded upon remand. The other experts who testified and
whose testimony is considered are:
a. Dr. William Stratford, who treated claimant for his
alleged mental illness, is a well known and respected Montana
psychiatrist. He has done a multitude of forensic
examinations and, from the Court's own knowledge, has
testified in numerous court proceedings. Based on the office
notes kept on Mr. Blythe, he is also a poor recordkeeper, a
fact which resulted in his inability to recall many specifics
of the case and which complicates my evaluation of his
b. Sarah Baxter, Ph.D., is a clinical psychologist practicing
in Missoula. At Dr. Stratford's request, she performed
psychological testing on claimant on October 25, 1989.
c. Herman Walters, Ph.D., is a respected Missoula
psychologist who maintains a clinical practice and also
teaches at the University of Montana. At Dr. Stratford's
request, Dr. Walters interviewed and tested the claimant
during the summer of 1992.
d. David Faust, Ph.D., is a clinical psychologist and
professor of psychology at the University of Rhode Island.
(Ex. 8 at 1-2.) He has several years of experience assessing
and treating schizophrenic patients. (Tr. at 480-81.) He is a
diplomate of the American Board of Assessment Psychology and
has written or contributed to numerous articles and books.
(Id. and Tr. at 483.) His publications include
articles on malingering. (Tr. at 483.) Dr. Faust reviewed the
results of claimant's psychological tests and other
materials pertaining to the claimant. (Tr. at 488.) He did
not personally examine the claimant, although he did observe
claimant's trial testimony.
Claimant's case for psychological disability is built
principally on his own testimony, his contemporaneous reports
to others concerning his symptoms, the testimony of friends
and associates tending to corroborate his claim of a
psychological decline, and the testimony of Dr. Stratford.
many years claimant has kept a diary. The diary consists of a
daily appointment calendar in which claimant entered his
appointments and errands, along with significant events
occurring during the day.
Claimant claims, and testified, that shortly after the needle
stick he began experiencing "sleep disturbances"
and "panic attacks," then later on depression, and
a. On February 1, 1989, three days after the incident, he
recorded "sleep disturbances" in his diary. (Ex. 17
at 15.) On February 7, 1989, he recorded a "panic
attack" and a pulse rate of 120. (Id. at 17.)
Later in February, and thereafter in March, he consulted with
a hospital psychologist concerning his "anxiety
attacks." (Id. at 22, 26.) Interestingly,
claimant's diary entries in February and March of 1989
reflect that he was taking a college class in the
"psychology of stress." (Id. at 15-24.)
b. By June 1989, he was recording depression. (Id.
at 52.) In August and September of 1989 his diary notes
concerning depression increased. (Id. at 68, 75-76,
82.) On September 15, 1989, he recorded that he didn't
know "who the person is who is looking out of my
eyes" and further expressed the thought, "I
don't care about anything any more not even my own
life." (Id. at 81.)
c. On September 21, 1989, he recorded that he had been to see
Dr. Cone, who was treating him for preexisting neck pain, and
told Dr. Cone that he was having depression and
"apparent manic episodes." (Id. at 83.)
d. On September 28, 1989, claimant mentioned hallucinations
for the first time in his diary entries. (Id. at
85.) His entry refers to a conversation he had that day with
Michael Biggins (Biggins), his supervisor at Community.
According to his diary entry, claimant told Biggins
"about some of the symptoms that I had been having,
i.e., the manic episodes (I came into work last night
overwhelmed c [with] anxiety for instance - I told him I come
to work like this quite often); Also, auditory hallucinations
S/A music & people speaking in low tones."
(Id.; italics added for emphasis.) His note further
indicates that he had already set up an appointment with Dr.
Stratford for October 2, 1989, and states that he asked
Biggins "about taking long term sick leave if in fact
Dr. Stratford thinks it would be appropriate."
October 2, 1989, claimant saw Dr. Stratford. He told Dr.
Stratford that three and a half years previous he had panic
attacks over his ex-wife; he then reported that he had
experienced new panic attacks following the needle stick.
(Stratford Dep. I at 62; Ex. 2 at 81.) He further reported
that he had also experienced manic attacks, depression, and
increased compulsivity, and that "30 days after stuck
with needle, [he] started hearing voices, low tones, both
male and female." (Stratford Dep. I at 63; Ex. 2 at 81.)
Claimant talked and acted so irrationally that Dr. Stratford
described him as being extremely despondent and
"bizarre, fragmented, angry and [with] paranoid
elements." (Tr. at 328.) He characterized claimant as
"wild-eyed, floridly nuts, extremely psychotic."
(Id. at 189, emphasis added.)
Stratford immediately took claimant off work "for at
least 6 weeks." (Ex. 14 at 78.)
October 5, 1989, claimant called Biggins to tell him of Dr.
Stratford's advice. In his diary claimant wrote:
[A]sk for an additional 2 wks so that I could see my parents
at Thanksgiving. I requested to return the 1st wk in Dec.
1989. Michael agreed that this would be o.k.
(Ex. 17 at 87.)
Stratford sent claimant to Sarah Baxter, Ph.D., for
psychological testing, which occurred on October 25, 1989.
(Ex. 2 at 39-41.) Following the testing Dr. Baxter told Dr.
Stratford that claimant had acted "very bizarrely"
and had frightened her. (Tr. at 329.)
Over the next six years, Dr. Stratford prescribed various
psychotropic drugs, including Zoloft, Tranxene, Lithium,
Haldol, Thorazine, Ascendin, Cogentin, Novane, Prozac, Xanax,
Pamelor, Triavil, and Norflec. (See Dr. Stratford's
various office notes found at Ex. 2 at 81-154.) Blood tests
for Lithium levels confirmed that claimant was taking the
Lithium. However, Dr. Stratford's belief that claimant
took the other prescribed drugs was based on claimant's
reports rather than any independent verification. (Tr. at
412-13.) He did note, however, that side effects reported by
claimant were consistent with known side effects of the
prescribed medications. (Id. at 315.)
the time of trial, Dr. Stratford had prescribed Lithium,
Zoloft and Tranxene. (Id. at 424-25.) The Court
asked the doctor what affect those drugs would have on a
non-mentally ill individual. He replied that other than
possible fatigue and drowsiness they would have no affect on
a normal person. (Id.)
Since October 1989 claimant has continued to report
hallucinations. He has reported auditory, visual and
gustatory (taste) hallucinations.
a. At various times, he reported to Dr. Stratford of hearing:
(1) Easy listening music. (10/01/89) (Stratford Dep. I at 71;
Ex. 2 at 84- 85.)
(2) Whispering, synthesizer sounds, and religious voices.
(4/10/91) (Stratford Dep. I at 89; Ex. 2 at 94.)
(3) Tone inflections, music, a train coming down the tracks,
metallic grinding sounds, and a doorbell ringing. (5/13/91)
(Stratford Dep. I at 91; Ex. 2 at 95.)
(4) Grinding metallic music changing to beautiful music.
(12/4/91) (Stratford Dep. I at 95; Ex. 2 at 98.)
(5) "The voice of God saying that time is short."
(12-5-91) (Ex. 2 at 39.)
(6) Voices like on the radio. (1/20/92) (Stratford Dep. I at
96; Ex. 2 at 99.)
(7) Synthesizer music. (3/16/92) (Stratford Dep. I at 97; Ex.
2 at 100.)
(8) Pops, clicks and snaps but no voices. (4/27/92) (Ex. 2 at
(9) Angelic voices, singing. (8/3/92) (Id. at 39.)
(10) Voices like a "pentecostal speaking in
tongue," along with music. (8/31/92) (Id. at
(11) Ongoing "radio hallucinations." (9/28/92)
(Id. at 141.)
(12) Cartoon sounds, pops, clicks, snaps, artillery, music,
and some human voices. ...