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Fitch v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

December 17, 1998

KATHY M. FITCH, Petitioner,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent/Insurer for J.C. PENNEY, INCORPORATED, Employer.,

          Date Submitted: April 17, 1998

          FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

          MIKE McCARTER JUDGE

         Summary: 41-year-old stockroom merchandise handler for J.C. Penney was struck in the head by a box while helping unload a truck. She was subsequently diagnosed by various physicians as suffering from post-concussion syndrome, cervical strain, depression, temporalmandibular joint syndrome (TMJ), and carpal tunnel syndrome. Although she did not return to work at J.C. Penney, she worked for short periods post-injury as a housekeeper and receptionist. She claimed permanent total disability, claiming severe headaches, eye pain, neck pain, arm and right hand pain, and carpal tunnel syndrome.

         Held: Claimant is not PTD. Although some physicians rendered diagnoses or gave opinions supporting claimant's allegations of disability, those diagnoses and opinions were based upon claimant's subjective reports of pain and disability, which the Court found incredible. A licensed psychologist's testimony that claimant suffered from dementia due to traumatic brain injury and a neurocognitive injury was discredited through cross-examination indicating he failed to properly administer or interpret tests and through the more persuasive testimony of a neuropschologist with far more impressive credentials. Video surveillance taken on 14 days over a 24 day period showed claimant engaged in activities inconsistent with her subjective reports, leading panel physicians to testify her presentation during examination and during videotaped deposition was inconsistent with that portrayed on surveillance video. The Court's own review of video fortified its conclusion that claimant deliberately exaggerated her symptoms.

         Topics:

Benefits: Permanent Total Benefits: Generally. A 41-year-old stockroom merchandise handler claimed PTD after being struck on the head by a box. Almost four years after the injury, she claimed severe headaches, eye pain, neck pain, arm and right hand pain, and carpal tunnel syndrome due to the accident. Although some physicians rendered diagnoses or gave opinions supporting claimant's allegations of disability, those diagnoses and opinions were based upon claimant's subjective reports of pain and disability, which the Court found incredible. Employer's motion to dismiss on ground that claimant was not an employee and faked her fall denied where not supported by "appropriate supporting documents and affidavits" as required by ARM 24.5.316(3).
Physicians: Psychological Evaluation. A licensed psychologist's testimony that claimant suffered from dementia due to traumatic brain injury and a neurocognitive injury was discredited through cross-examination indicating he failed to properly administer or interpret tests and through the more persuasive testimony of a neuropschologist with far more impressive credentials.
Physicians: Psychologists. A licensed psychologist's testimony that claimant suffered from dementia due to traumatic brain injury and a neurocognitive injury was discredited through cross-examination indicating he failed to properly administer or interpret tests and through the more persuasive testimony of a neuropschologist with far more impressive credentials.
Surveillance. Employer's motion to dismiss on ground that claimant was not an employee and faked her fall denied where not supported by "appropriate supporting documents and affidavits" as required by ARM 24.5.316(3).

         ¶1 The trial in this matter was held on February 20, 1998, in Bozeman, Montana, February 23, 1998, in Helena, Montana and April 17, 1998, in Missoula, Montana. Petitioner, Kathy M. Fitch (claimant), was present and represented by Mr. H. Charles Stahmer. Respondent, Liberty Mutual Fire Insurance Company (Liberty), was represented by Mr. Larry W. Jones.

         ¶2 Transcripts of the trial have been prepared and filed with the Court. Transcript citations in this decision are limited to quoted material and to facts critical to the Court's decision.

         ¶3 Exhibits: Exhibits 1 through 32, 34, 36, 47 through 51 and 53 through 56 were admitted. Exhibits 33, 35, 37 through 41, 43 and 44 were withdrawn. Exhibit 46 was admitted over the objection of Mr. Stahmer. Exhibit 52 was admitted as a demonstrative exhibit. Videotape surveillance of claimant was also admitted as Exhibits 42 and 45.

         ¶4 Witnesses and Depositions: Kathy Fitch, Lisa Waddell, Annie L. Castillo, M.D., James C. Deming, Ed.D., Karen Black, Allen R. Severson, Vickie Wyant, Michael Layman, M.D., Brenda Herbst, Tommy Fitch, Ethan B. Russo, M.D., Robert Velin, Ph.d., Mark Fullerton, Martin Cheatle, Ph.D., and Dana Headapohl, M.D., were sworn and testified. In addition the Court received the depositions of Kathy Fitch (two depositions), Martin D. Cheatle, Ph.D., Kay Walstrom, Marion Bailey, Judy McCubbin, James C. Deming, Ed.D (two depositions), Ethan B. Russo, M.D., Herbert E. Prussack, M.D., Dana M. Headapohl, M.D., Karen Black, James L. Booth, D.D.S., Annie Castillo, M.D., John Campbell, M.D., Allen Severson, Lynne Sinnema, Leona Steenson, George Schramm, and Patricia A. LaHaie, M.D.

         ¶5 Issues Presented: As set forth in the Final Pre-Trial Order, the issues presented in this case are:

1.Whether Petitioner is permanently disabled and the amounts due, if any, and owing Petitioner.
2.Whether Petitioner is entitled to a 20% increase in benefits for Respondent/Insurer's alleged unreasonable refusal to pay benefits.
3.Whether Petitioner is entitled to medical benefits.
4.Whether Petitioner is entitled to an award of attorney fees and costs.

         ¶6 Having considered the final pre-trial order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

         FINDINGS OF FACT

         Injury and Benefits to Date

         ¶7 Claimant is presently 41 years old. She is married to Tommy Fitch.

         ¶8 Claimant was injured on June 20, 1994, while working for J.C. Penney, Incorporated, in Bozeman, Montana. She was helping unload a truck when she was struck in the head by a box. According to claimant, she saw spots and heard someone say, "You hit her with the box." (2/20/98 Tr. at 233.) The size and weight of the box which struck claimant is unknown.

         ¶9 At the time of her injury, claimant had worked for J.C. Penney for approximately two and a half years as a stockroom merchandise handler.

         ¶10 J.. Penney was insured by Liberty, which accepted liability for the claim.

         ¶11 The parties agree that claimant has reached maximum healing and no further findings are required on that matter. (Uncontested Fact 3.)

         ¶12 Liberty paid claimant temporary total disability benefits from July 22, 1994 through September 23, 1994. (Uncontested Fact 5.) It also paid permanent partial disability benefits from March 31, 1997 through November 16, 1997. (Id.) Those benefits were paid under a reservation of rights (id.), however, the insurer is not seeking to recover its payments.

         Post-Injury Work

         ¶13 Following her 1994 injury, claimant never returned to work for J.C. Penney. She did, however, work for short periods of time doing housekeeping type work. Between June and October 1997, she worked part time (two to four hours a day) for Ponderosa Homes. Over an eight-week period, she also worked for King Arthur Park cleaning a clubhouse and laundry area once a week, and also as a receptionist for a short time. Finally, she worked at Oakland Homes, doing part-time cleaning of manufactured homes for approximately two or three months. Her work for King Arthur Park and Oakland Homes was prior to June 1995.

         Claimant's Case for Permanent Total Disability

         ¶14 On August 18, 1997, claimant filed her petition for hearing, asserting that she is unable to work and is permanently totally disabled.

         ¶15 Claimant testified, and she has told medical practitioners, employers, and friends, that she suffers from persistent, debilitating headaches, neck and back pain, loss of memory, and dizziness. She has also reported pain in both arms.

         ¶16 In addition to her own testimony that she is unable to work, claimant presented testimony and medical records of several physicians and a psychologist who have treated her. She also presented the opinions of a vocational consultant.

         ¶17 Claimant was initially treated for her injury by Dr. Curt G. Kurtz; however, the parties did not provide the Court with either Dr. Kurtz's records or his testimony.

         ¶18 Dr. Annie L. Castillo, an internist, assumed care of claimant on July 15, 1994, approximately three and a half weeks after her injury. Dr. Castillo examined claimant ten times between and including July 15, 1994 and June 1995. The doctor did not thereafter see claimant until February 18, 1998, two days prior to trial, at which time claimant saw Dr. Castillo to "reestablish care."[1] (Ex. 1C at 44.) During her 1994 treatment of claimant, Dr. Castillo diagnosed claimant as suffering from post-concussion syndrome, cervical strain, depression, and possible carpal tunnel syndrome (CTS). She referred claimant to Dr. Herbert E. Prussack, a neurologist, [2] for further evaluation. (Castillo Trial Test. and Ex. 1C.)

         ¶19 Based on claimant's report of headaches, sleep disorder, fatigue, and other subjective symptoms, Dr. Castillo testified at trial that claimant has chronic post-concussion syndrome which renders her unable to work a regular eight hour, five day week. (2/20/98 Tr. at 66-67.) Dr. Castillo conceded that it is possible that claimant is falsifying her symptoms. (Id. at 66.) She agreed that her diagnoses of post-concussion syndrome and depression are based entirely on claimant's reports of her subjective symptoms of headaches, sleep disturbance, and fatigue. (Id. at 71.)

         ¶20 Dr. Prussack initially examined claimant on September 13, 1994, at which time the claimant complained of headaches, dizziness, and neck pain. Dr. Prussack saw claimant approximately 15 times. Two days prior to his deposition, after not having seen claimant for almost a year (Ex. 1A at 3), claimant contacted Dr. Prussack to complain of a severe headache of two to three day duration "associated with a feeling of numbness on the left side of her body in her face and in her arm primarily."[3] (Prussack Dep. at 6.)

         ¶21 During his treatment of claimant, Dr. Prussack diagnosed claimant as suffering from post-concussion syndrome, depression, cervical strain, CTS, and temporalmandibular joint syndrome (TMJ). All of Dr. Prussack's diagnoses, with the exception of cervical strain, were based on claimant's subjective reports. (Prussack Dep. at 13, 17, 18, 25, 27, 42, 46.) The post-concussion syndrome diagnosis was based on claimant's subjective reports of persistent headaches, dizziness, sleep disturbance, cognitive dysfunction, and depression. (Id. at 18, 42.) The CTS diagnosis was based on claimant's subjective complaints of tingling and numbness in her right hand and not on any objective medical tests. (Id. at 13, 20, 24, 26-27, 75). Dr. Prussack did not relate CTS to claimant's industrial accident or any other specific event. Similarly, his TMJ diagnosis was based entirely on claimant's subjective complaints of difficulty chewing and an inability to completely open her mouth; it was not verified by x-rays. (Id. at 13.) He did find muscle tightness in claimant's neck but there was no MRI or other objective evidence of cervical injury. (Id. at 31, 45.)

         ¶22 On June 10, 1995, claimant was involved in an automobile accident. She was seen at the emergency room of Bozeman Deaconess Hospital. (2/20/98 Tr. at 243-44.) Dr. Prussack provided follow-up care and testified that claimant suffered an increase in the severity and frequency of her headaches, but that the headaches were present and significant prior to the accident and that she was already suffering from chronic post-concussion syndrome. (Prussack Dep. at 33-34, 82.)

         ¶23 For purposes of this Decision, the Court has not considered whether the 1995 auto accident materially aggravated claimant's preexisting condition, thus relieving the insurer of liability for the 1994 industrial accident.[4] The insurer has not tendered such a defense in its contentions in the final pre-trial order; in any event, this case is decided on unrelated grounds.

         ¶24 I have also not considered claimant's alleged CTS. The claimant alleges on page 2 of her petition for hearing that she "is also suffering from an occupational disease, carpal tunnel syndrome, which causes her pain and discomfort and further limits her physical ability." While Dr. Campbell, an orthopedic surgeon, provided testimony indicating that claimant may in fact suffer from CTS which prevents her from holding a job involving "repetitive motion work," (Campbell Dep. at 55), the Workers' Compensation Court does not have original jurisdiction involving disputed liability in occupational disease claims. See § 39-72-202, MCA. Claimant has presented no evidence that she filed an occupational disease claim for CTS or that the insurer has admitted liability for such a claim. She presented no evidence that her alleged CTS was aggravated by her industrial accident. While presenting some evidence that CTS may have begun prior to her industrial accident, the severity of the condition is predicated on her reports of her symptoms, and the Court finds her reports incredible.

         ¶25 Dr. Prussack opined that as a result of her post-concussion syndrome and chronic pain, the claimant is unable to hold regular employment. (Prussack Dep. at 85-87; Ex. 1A at 2.)

         ¶26 Dr. Layman examined claimant in the emergency room following her June 1995 auto accident. (2/20/98 Tr. at 244.) It was the only time he saw her. (Id. at 250.) However, he also testified as an expert witness concerning the claimant's industrial accident.

         ¶27 Dr. Layman testified that however small and insubstantial was the box which hit claimant on June 20, 1994, it may have caused post-concussion syndrome. (Id. at 251-52.) He reviewed the medical records of Drs. Prussack and Booth, the records of the Missoula Medical Panel, and the depositions of Drs. Campbell, Castillo, and Booth. (Id. at 249-51.) He opined that claimant is suffering from post-concussion syndrome due to a combination of the 1994 industrial accident and the 1995 motor vehicle accident. (Id. at 257-58.)

         ¶28 As with other physicians, Dr. Layman's diagnosis and opinions were based on claimant's subjective complaints and are therefore dependent on the veracity of her complaints.

         ¶29 At Dr. Prussack's recommendation, claimant was examined by Dr. James C. Deming, who is a licensed psychologist. Dr. Deming administered a battery of psychological and psychoneurological tests. He testified that claimant suffers from "dementia due to traumatic brain injury" and a "neurocognitive injury." (2/20/98 Tr. at 93, 109, see also 85.) I give no weight to his testimony. As demonstrated by cross-examination and by the testimony of Dr. Robert A. Velin, a neuropsychologist with far more impressive professional credentials than Dr. Deming, Dr. Deming failed to properly administer and interpret the tests upon which he based his opinions. Dr. Velin disputed Dr. Deming's opinions and conclusions. I found Dr. Velin to be the more qualified and persuasive witness.

         ¶30 Karen Black (Black), a vocational consultant, testified on behalf of claimant. Based on restrictions she believed were placed on claimant by Drs. Prussack, Deming, and Campbell, a TMJ diagnosis, and her understanding that claimant suffers from migraine headaches, myofascial pain in the cervical, thoracic, and lumbar area, Black testified that claimant could not perform her old job at J.C. Penney, medium housekeeping type jobs such as she did for Ponderosa Homes and King Arthur Court, or sedentary receptionist duties, which she performed for a time for King Arthur Court. (2/20/98 Tr. at 184-89.) According to Black, claimant has no reasonable prospect of employment. (Id. at 190.)

         ¶31 The claimant, in her testimony, in her interaction with her friends, in her reports to physicians and Dr. Deming, and, to lesser extent, in her contacts with two employers portrayed herself as suffering frequent debilitating headaches, dizziness, neck pain, as having difficulty in chewing, an inability to completely open her mouth, difficulty with remembering, difficulty sleeping, tearfulness, right arm and hand pain, difficulty in concentrating, as being unable to use her arms in repetitive movements, as unable to carry out any sustained activity, and as able, with difficulty, to perform only minimal household chores at home.

         ¶32 At trial claimant sighed, laid her head on counsel table for much of the time, walked stiffly, and appeared to be in agony, at least until she testified. At a suppression hearing and on the first day of trial, the Court offered claimant a continuance because she presented herself as being in such great distress.

         Malingering

         ¶33 Liberty presented persuasive, overwhelming evidence that claimant is malingering and that she has deliberately exaggerated her symptoms to her physicians, employers, friends, and the Court.

         ¶34 As a part of its evidence, Liberty presented surreptitious video surveillance films of the claimant and videotapes of claimant's depositions. The surveillance videotapes were taken over a twenty-four-day period between September 23, 1997 and October 16, 1998. Actual videotaping occurred on fourteen days.

         ¶35 The surveillance tapes were shown to one of claimant's friends, to three physicians who had previously examined her as a part of an independent medical examination, and to this Court. The friend (Brenda Herbert) expressed surprise at the extent of claimant's activities. The observations of the physicians following their viewing is detailed below. The video depositions of claimant were also reviewed by the Court and by Drs. Headapohl, Russo, and Cheatle.

         ¶36 Drs. Dana Headapohl, Ethan Russo, and Martin Cheatle participated in a Missoula Medical Panel evaluation of claimant in 1995 and again in 1997.[5] Dr. Headapol is board certified in occupational medicine. Dr. Russo is a board certified neurologist. Martin Cheatle, Ph.D., is a psychologist who specializes in the treatment of pain.

         ¶37 The first panel examination was September 1995. After individually examining the claimant, the panel as a whole reported its conclusions on October 16, 1995, as follows:

         What is the claimant's present diagnosis as it pertains to the accepted condition?

1) Cervical and upper back pain - myofascial pre-existing - temporarily aggravated by 6-30-95 [sic] injury.
2) Low back pain. NWR (Non work related)
3) Status post multiple head traumas. NWR
4) Possible post concusion [sic] syndrome secondary to non-work related 6-10-95 trauma.
5) Adjustment disorder.
6) Migraine headaches - pre-existing.
7) TMJ NWR

(Ex. 56 at 1.) It determined that there is no objective data supporting a CTS diagnosis. It found claimant to be at maximum medical improvement and found no (0%) impairment. (Id. at 3.) Finally, the panel found that claimant can perform light and sedentary work. (Id. at 2.)

         ¶38 The second panel examination took place in Missoula on October 15, 1997. Claimant traveled from Bozeman to Missoula that day, arriving at St. Patrick's Hospital at approximately 12:35 p.m. (Videotape for October 15, 1997). She entered the hospital at 1:08 p.m. for examinations by Drs. Headapohl, Russo, and Cheatle. The examinations were completed and claimant exited the hospital at 4:50 p.m. (Id.)

         ¶39 Unbeknownst to claimant and the panel doctors, a private investigator videotaped claimant's arrival at an entry into the hospital, her exiting the hospital, her activities thereafter until 8:08 p.m., when she checked into a motel, and her activities between 9:39 a.m. and 11:17 a.m. the next day (October 16, 1997).

         ¶40 Without knowledge of the video surveillance of claimant, Drs. Headapohl, Russo, and Cheatle submitted written reports to Liberty. As a panel they reported:

We have reinterviewed and examined Ms. Fitch on 10-15-97. Additionally, we reviewed the medical records provided. Our individual conclusions are unchanged.

(Ex. 47.)

         ¶41 In his individual report, Dr. Russo recorded that claimant was wearing a right wrist splint and complained of headaches, neck, back and arm pains, forgetfulness, ...


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