Stevens v. Burlington Rent-All (Nov. 20, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Norman W. Stevens File #: E-5968
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Burlington Rent-All Commissioner
Opinion #: 66-96WC
Hearing held at Montpelier, Vermont, on September 30, 1996.
APPEARANCES
Mary G. Kirkpatrick, Esq., for the claimant
Keith J. Kasper, Esq., for the employer
ISSUE
Whether the carrier properly terminated benefits for psychotherapy with David Gauthier in March of 1996.
THE CLAIM
1. Psychotherapy benefits with David Gauthier, M. A., pursuant to 21 V.S.A. §640.
2. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. At all relevant times, the claimant was an employee within the meaning of the Workers' Compensation Act.
2. At all relevant times, the defendant was an employer within the meaning of the Workers' Compensation Act.
3. On October 3, 1991, the claimant suffered an injury arising out of and in the course of his employment with the defendant.
EXHIBITS
1. Joint Exhibit 1 Medical records notebook
2. Claimant's Exhibit A Deposition of David Gauthier dated September 23, 1996
3. Claimant's Exhibit B Deposition of David Gauthier dated September 27, 1996
4. Claimant's Exhibit C Deposition of Dr. Harvey Klein
FINDINGS OF FACT
1. The above stipulations are accepted as true, and the exhibits are admitted into evidence. Notice is taken of all forms filed with the Department in this matter, particularly the Form 27, Notice of Intent to Discontinue Benefits, dated January 24, 1996, with an effective date of March 30, 1996.
2. The claimant suffered a serious injury to his right ankle and other parts of his body on October 3, 1991, when a power roller rolled over his foot as it was being unloaded from a customer's vehicle. Over the following years, and continuing, he has had physical problems from the injuries sustained on that date. In December of 1991, he began to treat for psychological injuries that arose because of his difficulty in dealing with his physical problems.
3. The claimant has treated since that time with Dr. Harvey Klein, a board eligible psychiatrist, and David Gauthier, a Masters level psychotherapist. He is currently receiving medication to treat an ongoing depression, a seizure disorder (unrelated to his work injury) and anxiety, as well as medication for his stomach to offset some of the effects of other
medications.
4. The claimant's treatment has been primarily with Mr. Gauthier, and has consisted of weekly or more frequent sessions, with an occasional period of less frequent meetings over the years. Over the years, Mr. Gauthier has seen the claimant's level of depression change, frequently in response to stressors related to his medical treatment or the handling of his workers' compensation claim by the carrier. However, there have also been occasions when the claimant's depression has worsened because of stressors unrelated to the work injury. While the claimant has frequently been said to have made progress in dealing with particular areas or goals, there is no evidence that the claimant has made lasting improvement in any of these areas.
5. The claimant described his treatment with Mr. Gauthier as a "life preserver." He indicated that his wife has a learning disability such that he cannot talk with her, so that Mr. Gauthier is his "last hope." He testified that he used to be outgoing but that he now spends his time in his house, working on his computer.
6. The claimant described his treatment with Mr. Gauthier as talking about the things that make him angry. He said that they do not do exercises, just talk. He used to record his panic attacks and keep a journal, but he does not do that anymore. He testified that he sees Mr. Gauthier for additional meetings when he is in a crisis, and that he has had multiple crises since January of 1996. He also admitted that he has called in sick to Mr. Gauthier
to avoid seeing him when he does not want to talk about issues, including suicidal thoughts that he may be having.
7. The claimant admits that he has a problem with procrastination and that he was called on it by Dr. Klein. He does not feel he could work with Dr. Klein as he does with Mr. Gauthier. He testified that he and Mr. Gauthier had developed a plan for him to be involved in volunteer work but that it has not yet occurred. He also indicated that Mr. Gauthier supports him in his bid to get another computer course through the insurer. However, he concedes that it took him two and a half years to complete a prior computer course that he considered "a breeze." He claims that he had difficulty completing it while he was working with his vocational rehabilitation counselor, but that he completed it within six weeks once the counselor and he parted ways. The evidence suggests that it took him one year to complete the course after the departure of the counselor, not six weeks as he testified. It should be noted that the claimant was suffering from non-injury related eye problems that led to cataract surgery, and that for a period of time he was legally blind, which could account for some of his delay in completing the course.
8. The claimant has a prior history of psychological difficulties. As all parties agree, he had a dysfunctional childhood, and ended up at the Weeks School because of his behavioral problems. He also was sent to the Vermont State Hospital when he reported that he was going to kill his neighbor. He also had an incident in the late 1970s when he was hospitalized after he threatened to kill his family. The records for some of these treatments were available for review by the claimant's therapist and by Dr. Carol McKenna, the clinical psychologist retained by the insurer.
9. Mr. Gauthier opined that the earlier records showed a stage in the claimant's life that was irrelevant, as the claimant had clearly established a consistent working pattern and level of coping for the twelve or thirteen years that he worked at the employer. He also indicated that the claimant could be expected to reach an end result for psychological purposes in the early part of 1997, perhaps in February. He expected that the claimant would need to be tapered off of treatment thereafter. He also did not believe it would be appropriate for the claimant to receive episodic or inconsistent treatment.
10. Dr. Harvey Klein testified that he was the treating psychiatrist for the claimant for the purpose of prescribing his medication and to oversee the progress the claimant is making in therapy. He opined that the claimant would not reach an end psychological result until several months after he reached an end orthopedic result, since many of the claimant's issues arise around his physical limitations and lack of trust in his medical caregivers.
11. Dr. McKenna, a clinical psychologist, performed an evaluation of the claimant on December 5, 1995. The evaluation consisted of an interview for an hour or slightly longer, and two neuropsychological tests, the MMPI 2 and MBHI. The MMPI 2 is used as a personality inventory to establish how the patient interacts with the world, while the MBHI is an indicator of how the patient interacts regarding health issues. Dr. McKenna testified that she uses these tests as an ancillary strategy to corroborate or validate her clinical judgment.
12. Based on her interview, the test results, and the medical history, Dr. McKenna made the following diagnostic configuration pursuant to the DSM IV:
Axis 1 Mental Disorder, Not Otherwise Specified due to a Medical Condition
(Partial Complex Seizures) Dysthymic Disorder
Axis II Personality Disorder, Not Otherwise Specified (Provisional)
Axis III Rule Out Partial Complex Seizures
History of Epilepsy (Grand Mal and Petit Mal)
Axis IV Occupational Problems
Economic Problems
Psychosocial Problems
Axis V Global Assessment of Functioning Scale (GAF)
Current: 50
Highest: 50
Based on her analysis of the claimant's functioning within categories established by the AMA Guides to the Evaluation of Permanent Impairment, Dr. McKenna found that the claimant had a moderate impairment in overall functioning, with a permanent impairment rating of 25% of the whole person.
13. Dr. McKenna is a certified EEG technologist and is familiar with the use of such tests to diagnose organic problems in the brain. Based on her reading of the medical records in this case and her review of the history of the claimant's behavior, particularly as recorded at Vermont State Hospital, Dr. McKenna suspected that the claimant might be suffering from a more complex seizure disorder, possibly temporal lobe seizures. This is significant as such seizures may present as behavioral problems, and the sufferer may have difficulty in controlling his anger and may engage in repetitive behaviors. Dr. McKenna testified that there was no evidence that an appropriate EEG had been done to test for temporal lobe seizures, and hence the possibility of such seizures could not be ruled out. Based on her view of the claimant's possible seizure disorder, she opined that the claimant's current problems are organic and not behavioral, and predate the injury at the defendant.
14. Dr. McKenna also determined that a more appropriate categorization for the claimant's depressive disorder was dysthymia as opposed to the major depression diagnosed by Mr. Gauthier. The basis for her diagnosis was the fact that her evaluation suggested that the claimant's depression was long standing, with no specific beginning, an opinion supported by the claimant's performance on the MMPI 2. She testified that a major depression would have
a specific beginning and end, a condition not supported by either the medical evidence or the psychometric testing.
15. Based on her diagnoses, Dr. McKenna opined that the claimant would be better served by short term confrontational therapy than by his current regimen. She specifically noted that the current treatment had been given a four year try without measurable success, and that an alternative therapy was therefore warranted. She also encouraged the use of episodic treatment as opposed to weekly treatments for a number of reasons. She indicated that episodic treatment builds responsibility and reduces dependence on the therapist, and that it gives the patient a chance to practice what he has learned. A patient cannot create a sense of mastery or self-efficacy with weekly visits, and will tend to use the therapist as a crutch. She testified that a patient with no friends who uses therapy as a social contact should be taught social reintegration and should not be seen in weekly sessions. It is Dr. McKenna's opinion that the treatment being afforded the claimant at this time may actually harm him because of the dependence that he has developed on the treatment.
16. Dr. McKenna has recommended that the treatment being received by the claimant should be tapered and has proposed a schedule for the tapering. That schedule is weekly sessions for two or three weeks, then biweekly sessions for one or two months, then two months of monthly contact, and a final follow-up visit after about three months.
17. Mr. Gauthier contested the findings of Dr. McKenna. He was very concerned that Dr. McKenna in her report simply lifted phrases verbatim from the computer scoring of the claimant's testing and did not alter the phrases to reflect her clinical judgment. Dr. McKenna replied that this was to prevent any tester bias entering into the discussion and that the computer scores were more objective and efficient. Mr. Gauthier also disputed Dr. McKenna's claim that he was not engaged in confrontational based therapy with the claimant. There is no evidence in Mr. Gauthier's notes or in the claimant's testimony to support Mr. Gauthier's claim to use of such a modality.
18. Dr. Harvey Klein testified that he believed that the treatment was reasonable and necessary for the claimant because much of the claimant's psychological difficulties reflected physical problems that he was having and that he did not believe were being properly treated. Dr. Klein indicated that, since the claimant was scheduled to be at an end medical result for his orthopedic problems in November of 1996, it would be appropriate to continue
treatment for a few months thereafter, perhaps until February, and then to taper him off. He indicated that the claimant's many crises over the years seemed to be in response to his perception of physical difficulties, or difficulties with the insurer, and that the removal of these two triggers would allow him to reach an end psychological point. Dr. Klein agreed that he had not seen any significant improvement in the claimant since July of 1995, but he was hopeful that the removal of these stressors would allow for some improvement with ongoing treatment.
19. Dr. Klein also testified with regard to Dr. McKenna's DSM IV configuration, as shown above. He did not have any disagreement with her various diagnoses, although he would have indicated under Axis IV that the problem areas were severe, rather than simply identifying them.
20. Finally, Dr. Klein testified with regard to the claimant's use of substances in detriment to his improvement. Specifically, he noted that the claimant had a propensity to self-medicate and to alter the doses of medications specifically prescribed, although this behavior has lessened in the recent past. He also noted that the claimant continued to smoke and drink coffee, taking in amounts of nicotine and caffeine that were deleterious to his condition, in spite of being repeatedly advised to limit his use of these substances.
21. In light of Dr. Klein's support for Dr. McKenna's diagnostic configuration, I find that Dr. McKenna's diagnosis of the claimant's condition is more credible than that of Mr. Gauthier, in spite of Mr. Gauthier's lengthy association with the claimant.
22. The claimant has presented evidence of his fee agreement with his attorney for an hourly rate of $35.00, or a contingency fee not to exceed 20% of the amount recovered or $3,000.00, whichever is less. As this agreement comports with Rule 10(a) of the Workers' Compensation and Occupational Disease Rules, it is acceptable. The claimant has presented evidence that his attorney has spent 169.9 hours in representation and has expended
$3,560.41 in costs.
CONCLUSIONS
1. In workers' compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Where the causal connection between an accident and an injury is obscure, and a lay-person would have no well grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno's Inc., 137 Vt. 393 (1979). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. The claimant also has the burden of proof with regard to the reasonableness and necessity of any proposed medical treatment. See, e.g., McKane v. Capital Hill Quarry Co., 100 Vt. 45 (1926). Expert medical evidence is required to support his position in this regard.
4. The expert testimony in this case establishes that Mr. Gauthier had been treating the claimant for four and a half years based on a faulty diagnosis. Mr. Gauthier's failure to diagnose the claimant correctly is troublesome in light of the length of the treatment, but not surprising in light of the apparent lack of success of the treatment. The only support for Mr. Gauthier's continued treatment of the claimant (other than his own) comes from Dr. Klein who has testified that the claimant has the possibility of further significant improvement after he reaches an end medical result for his orthopedic problems. Dr. Klein has not addressed, and was not asked to address, the possibility that Mr. Gauthier's treatment might be harmful for the claimant. Accordingly, his limited support for future treatment is compromised.
5. I find that the termination of psychotherapy benefits pursuant to the Form 27 was supported by substantial evidence and was appropriate. However, in light of the claimant's ongoing treatment in the time between the effective date of the Form 27 and the decision here rendered, it is appropriate for the insurer to pay for the taper of treatment that is currently required, as that treatment is reasonable and necessary according to Dr. McKenna.
6. The claimant not having prevailed is not entitled to an award of attorney's fees or costs.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. Aetna Insurance Company, or in the event of its default Burlington Rent-All, pay for the claimant's psychotherapy benefits for weekly sessions for two or three weeks, then biweekly sessions for one or two months, then two months of monthly contact, and a final follow-up visit after about three months; and
2. All other claims for psychotherapy benefits or for fees and costs be denied.
DATED at Montpelier, Vermont this 20th day of November 1996.
________________________________
Mary S. Hooper
Commissioner