Reed v. Fay's Drugs (Oct. 31, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Jeffery Reed File #: F-06257
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Fay's Drugs Commissioner
Opinion #: 65-96WC
Hearing held at Montpelier, Vermont, on July 15, 16, 18, and 25, and August 28, 1996.
Record closed on September 30, 1996.
APPEARANCES
Ronald A. Fox, Esq., for the claimant
Christopher McVeigh, Esq., for the employer
ISSUES
1. Whether the claimant suffered post traumatic stress disorder as a result of his exposure to carbon monoxide poisoning at work.
2. Whether the claimant's injuries to his back and knee are compensable as a result of his exposure to carbon monoxide at work.
3. Whether the claimant has suffered permanent partial or total disability as a result of his exposure to carbon monoxide at work.
4. Whether the claimant is entitled to ongoing medical benefits as a result of his exposure to carbon monoxide at work.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 for any period of time when the claimant was unable to work due to a knee injury indirectly related to his work injury.
2. Permanent partial disability compensation pursuant to 21 V.S.A. §648.
3. Permanent total disability compensation pursuant to 21 V.S.A. §644.
4. Medical and hospital benefits pursuant to 21 V.S.A. §640.
5. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. Claimant suffered an injury which arose out of and during the course of employment on 7/28/92.
2. Claimant was an employee within the meaning of the Act on the date of the accident.
3. Employer was an employer within the meaning of the Act on the date of the accident.
4. Crum & Foster was the workers' compensation carrier for the employer on the date of the accident.
5. Claimant's average weekly wage for the twelve week period preceding the accident was $227.31.
6. Claimant had three dependents at the time of the accident and now has five.
7. As of September 15, 1992, Bert Sell & Company [the third party administrator for this claim] had signed medical releases from the claimant, which the parties agree were signed prior to September 15, 1992.
EXHIBITS
1. Joint Exhibit 1 Medical records notebook
2. Joint Exhibit 1A Second medical records notebook
3. Claimant's Exhibit I Notice of Termination of Employment
4. Defendant's Exhibit A Secondary School Record for the claimant
5. Defendant's Exhibit B Final Order for Relief from Abuse dated March 10, 1986
6. Defendant's Exhibit C Temporary Order for Relief from Abuse dated March 16, 1987
7. Defendant's Exhibit D Complaint in the matter of Jeffery Reed v. Ventrex Reference Laboratories, Inc. in Bennington District Court
8. Defendant's Exhibit E Findings of Fact and Conclusions in the matter of State of Vermont v. Jeffrey [sic] Reed, Bennington District Court, dated July 31, 1995.
9. "a" for I.D.: A chart produced by the claimant of his athletic activities over seven year period
FINDINGS OF FACT
1. The above stipulations are accepted as true, and the exhibits are admitted into evidence, with the exception of "a" for I.D. Notice is taken of all forms filed with the Department in this matter.
2. In 1985, the claimant was a victim of a sexual assault at a prior place of employment. As a result of that assault, the claimant apparently received treatment for a number of psychological problems including persistent anger and irritation, a mistrust of his employer that also manifested in his other relationships, a feeling of emotional "coldness", and an intense dislike of being touched in either a sexual or nonsexual way. The diagnosis of his treating psychologist was post traumatic stress disorder ("PTSD"). As late as April of 1990, his psychologist noted that "Mr. Reed has made progress toward his recovery, but the process is still continuing." He also noted that the prolonged legal proceedings around the sexual assault contributed to the claimant's difficulty in recovery. There is no evidence presented as to the date of completion of those legal proceedings, or if in fact conclusion
has yet occurred.
3. In April of 1992, the claimant acquired a position with the employer as a full-time over-the-counter pharmacy clerk. His tasks included assisting with prescriptions, stocking shelves, ordering stock and a number of other tasks of significant responsibility. He also made himself available to perform other tasks, and even placed a ventilation duct between the pharmacy area and the storage area behind it.
4. On the Friday before the date of injury, one of the cashiers at the employer passed out, and was taken to the hospital. On the date of injury, the same young woman again passed out. The claimant reported that he had not been feeling well himself that day, with a headache and some nausea. The pharmacist recommended that he take a Tylenol, which he did. After the cashier was taken to the hospital, another cashier collapsed. She too was
transported to the hospital.
5. Shortly thereafter, a telephone call from the hospital confirmed that there was a problem with the air in the store, and then the fire department arrived. The firemen closed the store, and the claimant assisted the manager in clearing the store. Oddly, the claimant stopped to take his blood pressure at a commercial machine in the store, and claims that it was 160 over 30.
6. The claimant asserted that he was treated unfairly by his employer when he exited the store. Specifically, he was not allowed to use the telephone outside the store because the firemen were awaiting an incoming call. When he tried to cross the street to use a telephone, he says he was told by his supervisor that he would not be "covered" if he left the premises.
7. The claimant was transported to the Southwestern Vermont Medical Center where the store's occupants were being checked for carbon monoxide poisoning. Carbon monoxide was confirmed to be the agent of the difficulties at the employer. Because of his symptoms, the claimant was checked by Dr. Brown, a psychiatrist, with psychometric testing. The results were sufficiently irregular that the claimant was scheduled to be sent for hyperbaric oxygen
treatments to the Norwalk, Connecticut, hospital.
8. The claimant alleged substantial stress with regard to his time at the hospital in Vermont, and during his transfer to Connecticut. He testified that he could not understand what was going on around him, and that no one attempted to explain anything to him. He claims that he was isolated from his family, and told that his heart beat was irregular. He believed that he was at risk for a heart attack, based on something he overheard from a medical provider.
9. The claimant was transported by helicopter to Norwalk, Connecticut, for the required treatment in a hyperbaric chamber. There was delay in the transport since the two cashiers were also being sent, and the helicopter had to return to pick him up. His girlfriend, then seven months pregnant, spent time with him at Southwestern Vermont Medical Center prior to the transport, but did not go with him because of her gravid condition.
10. The claimant had three treatments in the hyperbaric chamber, which he described in significant detail. He claimed that his last treatment was moved up because he had to be released early to get a ride home with the family of one of his co-workers. The medical records do not support this claim. The records support the position that the claimant's psychometric testing at Norwalk was within normal limits upon his discharge, and that he
was alert without complaints of headaches or dizziness upon his arrival at the facility. The claimant expressed distress because he did not hear from his employer while he was in the hospital in Connecticut.
11. The claimant returned to Vermont with his co-workers, and did not return to work. He was examined again by Dr. Brown, and also by Dr. Bennett. They confirmed that his psychometric tests were normal. The claimant had some difficulty with Dr. Brown, apparently because he believed that Dr. Brown was giving information to the employer about the claimant's test results.
12. The claimant testified that, as a result of his exposure to CO and his mistreatment by his employer, he began to suffer from a constellation of symptoms. These symptoms included uncontrollable and/or impulsive anger, depression, a sense of remoteness, a feeling of emotional coldness, headaches, anxiety, inability to concentrate, a lack of trust in superiors in a work setting, flashbacks, night sweats, a loss of verbal abilities, and a loss of coordination, among others. Some of these symptoms arose immediately after the exposure, while some did not materialize until diverse dates substantially later in time.
13. The claimant began to treat with Dr. Alex Carroll, a psychiatrist, in September of 1992. Unfortunately, Dr. Carroll has since died and was therefore represented at the hearing solely by his office notes. Dr. Carroll, based on the claimant's reports to him in two interviews, diagnosed the claimant as suffering from post traumatic stress disorder ("PTSD"). The
source of Dr. Carroll's information about the claimant's prior care involving the sexual assault was the claimant. Dr. Carroll continued treating the claimant until his death in December of 1994.
14. The claimant in July of 1992 began to treat with Glen Cratty, a clinical social worker and therapist. Mr. Cratty also diagnosed the claimant with PTSD and he released the claimant to work in November of 1992. Mr. Cratty has continued to meet with the claimant through the present, and has had the opportunity to observe him on a frequent basis. Mr. Cratty indicated that he did not believe that it was his role to assess the claimant's credibility in
reporting his symptoms because of the nature of his therapeutic relationship. As a result, his understanding of the claimant's symptoms was based only on the reports of the claimant and Mr. Cratty's observations of the claimant, as well as Mr. Cratty's discussions with Dr. Carroll and Don Wehrung, the state vocational rehabilitation counselor. Mr. Cratty indicated that it was the claimant's physical problems which prevented him from working, not his
psychological problems, and he released the claimant to work in November of 1992.
15. Mr. Cratty testified that the claimant showed appropriate anger, and vented it at their sessions. Notwithstanding the claimant's testimony to the contrary, Mr. Cratty never saw the claimant out of control with anger, although the claimant reported such behavior to Mr. Cratty. Mr. Cratty was sufficiently convinced that the claimant did not have an anger problem that he wrote a letter to a criminal court on behalf of Mr. Reed denying that Mr.
Reed needed to attend an anger management group. This testimony is particularly important in light of Mr. Cratty's experience as a group leader in four such anger management groups. His credentials lend substantial credence to his testimony that the claimant did not have an impulsive anger problem.
16. The claimant in the fall of 1992 was referred by his then attorney to Don Wehrung, a vocational rehabilitation counselor employed by the State of Vermont. Mr. Wehrung worked with the claimant over an extended period of time, trying to place him in an appropriate work setting. He testified that the claimant was, throughout their relationship, motivated to find work. Mr. Wehrung indicated that he worked with the claimant to develop an IWRP ("individual written rehabilitation plan") that would allow the claimant to return to work as a house painter. At that time, private vocational rehabilitation had been initiated and the private counselor expressed a concern about the paint fumes, given the claimant's complaints about exposure to toxic airborne substances.
17. Thereafter, vocational rehabilitation continued with the ultimate result that the claimant found a training program for himself at Crescent Manor Nursing Home, where he was trained as a nurse's aide. The claimant did not receive any assistance from either counselor in this endeavor. While the claimant was working at Crescent Manor, he continued to report to Don
Wehrung. He did not keep his private vocational rehabilitation counselor, Helyn Strom-Henriksen, apprised of his activities. The claimant's reports to Mr. Wehrung were consistently positive about his experience at the nursing home, and Mr. Wehrung was surprised when the claimant terminated his position there after about 57 days. He had received no negative input from Crescent Manor regarding the claimant's behavior or his distractibility. The claimant's reported reason for his action was his fear that his uncontrollable anger would interfere with both his ability to care for the patients and his relationship with his supervisors.
18. Until this time, Ms. Strom-Henriksen had been involved in the claimant's search for work. In fact, she had located a position for him in Massachusetts as an on-call worker for a sheltered workshop for people with severe developmental difficulties. Initially, this placement was not successful because of the limited number of calls for the claimant. However, Ms. Strom-Henriksen intervened on the claimant's behalf, and had the position
converted to a full-time on-call position, where the claimant was guaranteed 40 hours a week. By the time she apprised the claimant of her success in this regard, he had already started the program at Crescent Manor. The claimant never reported any difficulties with that placement to Ms. Strom-Henriksen until after he terminated his position there. Ms.
Strom-Henriksen opined that the placement was the equivalent of a successful return to work, since the claimant had worked for nearly sixty days and had terminated his involvement without good cause. Ms. Strom-Henriksen testified that she asked the claimant to continue working while they sought an alternative placement for him but he declined.
19. Ms. Strom-Henriksen also testified that the claimant's termination of his position at Crescent Manor constituted a violation of his IWRP. Specifically, his voluntary termination between 55 and 58 days into the position was a violation. So also was his failure to disclose any job related difficulties, as required by the IWRP, to give her a chance to arrange for accommo- dations. These factors went into her conclusion that the claimant was not entitled to further vocational rehabilitation services. She described her later work with the claimant as being primarily medical management.
20. Ms. Strom-Henriksen testified that the claimant has never been unemployable since she first met with him. He had transferable skills that would enable him to seek gainful employment. She was never told that the claimant suffered "flashbacks" when he was working at Crescent Manor, and never observed any behaviors that would indicate that he was unable to work. In fact she had been under the impression that the work at Crescent Manor had been going well prior to his voluntary termination.
21. Ms. Strom-Henriksen arranged for the claimant to take some computer courses some- time in late 1994. The claimant successfully completed the first course, demonstrating an understanding of the syllabus in a DOS course. He also initiated enrollment in a second computer course, although it does not appear that he completed it.
22. Mr. Wehrung continued to work with the claimant throughout the period from his initial contact to the time of the hearing. After the failure of the placement at Crescent Manor, Mr. Wehrung placed the claimant in a Job Club, a group of vocational rehabilitation claimants who meet weekly with a counselor regarding job hunting. The claimant did not perform well in the setting and thought he would do better in a one-on-one setting. However, it was Mr. Wehrung's opinion that the claimant would learn more in the Job Club. He believed that the claimant was "testing" the counselor at the Job Club.
23. Mr. Wehrung testified that they have never come up with a specific job goal for the claimant. He indicated that ongoing medical issues have not allowed them to focus on a plan. It has been his understanding consistently from Dr. Toolan that the claimant cannot work. However, Mr. Wehrung conceded that he never witnessed any displays of inappropriate anger or suppressed rage, or any inappropriate behavior in person or over the telephone. He based his understanding of the claimant's inability to work on the reports of
the psychiatrists, although he only spoke with Dr. Toolan once very briefly. He did not seem to be aware that Mr. Cratty believed that the claimant had a work capacity. In any event, as recently as January of 1996, Mr. Wehrung, in conjunction with Ms. Strom-Henriksen, believed that the claimant was capable of light industrial work and prepared an IWRP for him so stating.
24. The claimant, as a result of complaints of certain symptoms, has seen a number of doctors to determine if he suffered organic brain damage as a result of his transitory exposure to carbon monoxide. For example, in March of 1993, the claimant was referred to the Department of Neurology at Harvard University Medical School for "neurological assessment with complaints of forgetfulness, anger outbursts, insomnia, anhedonia, and anxiety persisting 7 months after a significant accidental carbon monoxide poisoning." The
conclusion at that time, after testing, was that "[t]here is little to objectively support a delayed necrosis effect related to the CO exposure." The report went on to note that "[a] more difficult question is whether there has been any subtle neuronal loss consequent either directly from the hypoxic insult..., or atypical necrosis subsequently. His normal neurological
examination excludes gross lesions, and on the whole his neuropsychological performance is encouraging. He did however show some impulsivity, and complex attentional difficulty. It is our experience that such deficits can indicate patchy lesions of the extensive frontal network systems so important for concentration, motivation, impulse control and many other monitoring functions. Despite these minor impairments [emphasis added], it was encouraging that his other performances were so good. Alternative explanations for his attentional fluctuations include his significant depression and a contribution from his current medications, particularly the lorazepam." The report went on to note the claimant's severe psychological symptoms, which were determined to be incapacitating. The report is noteworthy for its correlation of the claimant's symptoms, not with the CO exposure but with the claimant's report that his life was ruined by his employer's behavior after he returned from Norwalk. The claimant apparently did not report his prior psychological treatment or related condition arising from the sexual assault to the testers at Harvard.
25. After the Harvard evaluation, the claimant began to treat with Dr. Joseph Kratzer, a neurologist. Dr. Kratzer conceded that he viewed his role as being an advocate for his patient. He is board certified in neurology, and is currently enrolled in a Ph.D. program in physics at Rensselaer Institute of Technology. His avowed purpose in pursuing his doctorate is to improve the state of technology for the study of the brain. He testified about the three current diagnostic tests for brain damage, the EEG, the research MRI, and the PET, or positron emission tomography. According to Dr. Kratzer, a lot of brain injuries could not be picked up by any of these three tests, which was why neuropsychological testing was developed.
26. Dr. Kratzer performed EEGs in April and August of 1993. As a result of the April testing, Dr. Kratzer opined that the claimant was not significantly neurologically compromised at that time. However, in August, the EEG showed a focal abnormality which had not been present in April. Because Dr. Kratzer believed that the evidence might reflect the initiation of a seizure disorder, he prescribed anticonvulsive medications for the claimant, and the claimant was prohibited from driving his automobile for a period of time as a result. Dr. Kratzer testified that current literature suggests that there may be a delayed onset of neurological problems after an exposure to CO, although the literature has not documented a delayed onset beyond four to six weeks. If, in fact, the deficit noted in August arose between April and August of 1993, it occurred nine to 13 months after the CO poisoning.
27. Based on his knowledge of the claimant and the clinical impressions he received, Dr. Kratzer opined that the claimant was significantly impaired neurologically. He opined that the claimant was suffering from a 75-80% permanent impairment, although he could not describe the mechanism for reaching these numbers. He reviewed the AMA Guides to the Evaluation of Permanent Impairment but he could not allocate his result within the framework of the Guides. He did not believe that the claimant was consciously over-reporting his symptoms, or that he was malingering, although he agreed that the claimant had reported symptoms that were bizarre, and with no medical explanation. He also agreed that he was dimly aware that the claimant was amplifying symptoms. He could not imagine any work that he thought the claimant might be able to perform, based on his observation of cognitive problems, demeanor and psychomotor retardation. However, in reaching this opinion, Dr. Kratzer was not aware that the claimant was involved in bowling leagues, basketball and softball leagues, ongoing hunting, or that the claimant had shot a deer within the past year. Dr. Kratzer testified that this information was surprising to him and would indicate that the claimant is capable of a higher level of functioning than he had thought. Dr. Kratzer did not offer an amendment to his impairment rating upon learning this information.
28. Dr. James Grubman, a clinical psychologist with a master's degree in pharmacology, was asked in the summer of 1994 to perform a records review for the insurer as it appeared that the claimant had plateaued. Based on the records, Dr. Grubman believed it was premature to rule out CO exposure as the source of the claimant's problems because of a number of unanswered questions and a compounding problem of the number of medications that the claimant was taking. He was concerned that the underassessment of the CO problem would
lead to the wrong treatment, and that the claimant would not be at an end medical result if there still was a CO problem. He also indicated that testing, such as a functional MRI, would not be reliable because of the medications the claimant was taking, but that either SPECT or BEAM testing, forms of neurological testing which he recommended, would not set the claimant up for failure. He also recommended that the carrier send the claimant to Dr. Andrew Saykin at Dartmouth-Hitchcock for further testing. Finally, he recommended detoxification from the claimant's extensive medications to allow a clearer picture of the nature of the problem confronting his treating physicians.
29. Thereafter, again at the request of the insurer, Dr. Grubman did an evaluation in person with the claimant in September of 1994. He noted that the claimant's reported PTSD seemed out of proportion to the experienced trauma, and that the claimant appeared much more intact than his records would suggest. Dr. Grubman had the claimant complete the MMPI 2, a neuropsychological test with internal validity scales. Based on the claimant's performance on that test, Dr. Grubman determined that the claimant was magnifying his problems. This led to the conclusion that the claimant was suffering from a somatoform disorder, which involves a condition with some objective findings, as here, with reported disability in excess of the objective findings. In reaching this conclusion Dr. Grubman noted the absence of clear, hard neurological findings. Specifically he noted that the claimant's examination at Beth Israel (the Harvard examination) did not document any of the sorts of changes anticipated in major CO cases. Since Dr. Grubman has a lot of experience in cases involving hypoxic or anoxic injuries, he was able to determine that those cases involved individuals much more impaired than the claimant. He was at the time of the examination
impressed by the claimant's good recall for the events surrounding his workers' compensation case and by his astute questions about the process of the examination.
30. In March of 1995, the claimant was examined at Dartmouth-Hitchcock by Dr. Andrew Saykin. Among the tests performed by Dr. Saykin and his staff was a WAIS test, which showed a decline from the claimant's previous testing at Harvard, and indicated a diffuse cerebral disfunction. Several of the tests performed were useful benchmarks of the claimant's performance, and virtually all of them showed a reduction from the prior tests at Harvard. The differences were significant, and Dr. Saykin at the hearing attempted to rank
the reasons for the differences, particularly in light of later testing by Dr. Grubman, which showed that the claimant was nearly returned to his Harvard level of testing. Dr. Saykin thought the most likely cause of the claimant's deterioration was the CO exposure, although risk factors like PTSD and the claimant's medications could increase the claimant's decompensation. He also noted that there was some intrasubset scatter within the tests, that is, patchy results within particular tests, which are not diagnostic but may be
some evidence of either malingering or brain damage.
31. Dr. Saykin did not perform the tests at his facility. They were performed by a graduate student and a psychometrician, after which Dr. Saykin spent about 20 minutes interviewing the claimant. Dr. Saykin indicated that there was no concensus in the medical community regarding validity testing when there are legal proceedings pending. However, he testified that he observed no flags during the interview or the rating of the tests to suggest that the claimant exhibited a lack of motivation in the tests. He indicated that it was possible but unlikely that the claimant slowed down his performance on the tests intentionally. He also testified that he no longer uses two of the tests used by Dr. Grubman because they did not meet rigorous psychometric standards to differentiate between malingering and attention
deficit. In particular, he contested use of the Rey 15 and the Portland Digit Test.
32. Dr. Saykin conceded that Dr. Grubman's tests in September of 1995 showed a significant improvement in the claimant's IQ tests. He indicated that some practice effect could occur on a retest within one year of the original test, so that Dr. Grubman's test might be affected by the earlier tests by Dr. Saykin's team in March. However, he also acknowledged that moderate to severe anxiety during test could depress scores and that memory impairment might reduce the practice effect in this case. He also indicated that he had no knowledge about the way the tests were administered by Dr. Grubman and that it was important for the tester to be a cheerleader in order to get the patient's maximal performance. He conceded that the patients attitude could also be a significant factor in a testing environment.
33. At around the time of the tests at Dartmouth-Hitchcock, the claimant was taken off his psychotropic medications. Thereafter, both his social associates and his various treating counselors noticed a difference in his ability to concentrate and to perform routine daily tasks. The claimant thereafter was able to resume driving his automobile freely.
34. Dr. Grubman saw the claimant for a second time in September of 1995 and performed some of the tests referred to above. The claimant has made a number of accusations about Dr. Grubman's treatment of him, claiming that Dr. Grubman called him inconsiderate for being late, and he asked the claimant "What are you, stupid?" and "Got a memory problem?" among other things. It goes without saying that Dr. Grubman denied these allegations. In fact, Dr.
Grubman testified that, after some initial animosity and questioning from the claimant regarding Dr. Grubman's earlier reports, a rapport of sorts was finally reached, and by the end of the interview the claimant was joking. Dr. Grubman specifically denied any strong words or berating of the claimant. He offered to give the claimant a break in the testing session and closed the shade when the sun got in the claimant's eyes.
35. Dr. Grubman gave the claimant many of the same tests he had taken at Dartmouth-Hitchcock. One of the variabilities that Dr. Grubman hoped to test was the effect, if any, of taking the claimant off the many medications he had been receiving. Dr. Grubman's IQ testing was much more consistent with the Harvard (or premedication) tests than with the Dartmouth tests.
36. On the two validity tests, the Rey 15 and Portland Digit Recognition Test, the claimant failed these tests badly. Dr. Grubman testified that these tests, when given in conjunction with other standard tests, are traps for the unwary. Both tests are actually quite simple. The Rey 15 test asks the test subject to remember and repeat five rows of symbols. Those rows are as follows:
A B C
1 2 3
a b c
I II III
[triangle] [circle] [square]
Standard scoring of this test indicates that getting two or fewer rows of the test correct reveals an invalid result. The reason for this is the obvious connection between the first three rows, and for an educated individual familiar with Roman numerals, the fourth row also becomes easy. The claimant got only one row correct. The Portland Digit Recognition Test requires an individual to remember five digits in order. No matter how well or poorly the subject performs on the first test, he is encouraged and told that he is doing well. This process will promote severe deterioration quickly in an individual trying to perform poorly. In this case, on three successive tests, the claimant scored an 11, an 8 and a 5. Even severely impaired individuals will score 33 out of 36 possible answers on three tests. The claimant scored only 24. The only explanations, according to Dr. Grubman, for such a poor performance are very severe brain damage or very poor attention. Although the claimant has continually reported an attentional deficit and other physicians had noted at least some evidence, albeit inconsistent, of attention difficulties, Dr. Grubman's tests and observations
confirmed that the claimant was very attentive throughout the testing.
37. Based on the results of Dr. Grubman's tests, he opined that the claimant performed in an invalid way on the Dartmouth tests. He further testified that, as this was a medico-legal case, the claimant required close observation for evidence of the principle of "secondary gain." This was particularly important where the claimant had a history of symptom
magnification. Dr. Grubman found a number of questionable facets to the claimant's history which also raised questions.
38. Among the issues that Dr. Grubman identified were the claimant's report of his academic record and his report of limitations in his activities to his care providers. Specifically, the claimant has regularly reported to caregivers, and testified at the hearing, that he was an average to above average student in high school. However, his academic records show that he was an above average student in the first two years, with grades of As and Bs, while in his last two years his grades were predominantly Cs and Ds. While his overall performance might therefore be called average, it was a serious misstatement for the claimant to ignore the low grades of his last two years in assessing his abilities. His statement in fact misled the Harvard team evaluating him as well as the Dartmouth team, since neither had access to the claimant's transcripts. Dr. Grubman requested that information prior to his second session with the claimant and was able to confront the claimant with the apparent discrepancy between his report and his record. The claimant declined to comment.
39. The other area of concern to Dr. Grubman was the report of physical symptoms which were inconsistent not only with the medical evidence but also with other evidence of the claimant's activities. Specifically he commented on the numerous reports by doctors of symp- toms with no physical explanation, and the claimant's reported inability to perform in a social setting. The claimant's self report of involvement in bowling leagues and other sporting groups belied his statements to a number of providers that he was a loner and uncomfortable in groups.
40. Dr. Grubman noted that the claimant did not report certain symptoms in 1995 that he had reported in 1994. Among these symptoms, most notably, was the claimant's failure to report ongoing flashbacks. Since Dr. Toolan's notes for the period from April 3, 1995, through the date of Dr. Grubman's 1995 examination do not reflect that the claimant was having flash- backs, Dr. Grubman could reasonably believe that that symptom had resolved. At the time of the 1995 examination, Dr. Grubman indicated that many of the claimant's symptoms were consistent with a paranoid disorder, including his hypervigilance and his alleged avoidance of social contacts.
41. Based on his testing of the claimant and his review of the claimant's extensive medical records, Dr. Grubman opined that the more probable hypothesis was that the claimant was suffering from an undifferentiated somatoform disorder and dysthymia. Dr. Grubman attributed these conditions to the incident at the employer, and indicated that the correct calculation according to the Guides was a 10-15% impairment to the whole person or a 20-30% impairment to the psyche. Dr. Grubman also testified that only slightly less probable was the possibility, based on the testing and the claimant's behavior, that the claimant was a malingerer.
42. The claimant's current treating psychiatrist, James Toolan, testified to his contacts with the claimant since he commenced treating him in April of 1995. Dr. Toolan is board certified in psychiatry and child psychiatry, although he currently considers himself semi-retired, as he sees patients only for about 25 hours a week. He has not received any specific training in PTSD although he treats a few cases of the condition each year. Dr. Toolan testified that the claimant fit the textbook definition of a sufferer of PTSD completely, and that it was extremely unlikely that an individual would know how to put symptoms together to fit the diagnosis in the DSM IV. However, Dr. Toolan was unaware that the claimant had previously been diagnosed with PTSD, and had apparently received treatment for the condition after the sexual assault. Dr. Toolan's only source for information with regard to the claimant's premorbid state was the claimant and his wife. The claimant's wife's credibility will be discussed below. Dr. Toolan ruled out Dr. Grubman's diagnosis of somatoform disorder because the claimant fit the PTSD criteria so well, and because "there were no indications of symptom magnification."
43. Dr. Toolan testified that the claimant was presently totally incapacitated from gainful employment, and that the prognosis for the claimant was poor. He found that the claimant was currently suffering from chronic, severe PTSD, as well as frontal lobe damage due to CO exposure. He found that the claimant had difficulty in concentration and decision making,
and significant paranoia. Dr. Toolan testified that his opinion about the claimant had not materially changed since his initial evaluation of the claimant in April of 1995. Dr. Toolan determined that the claimant had a permanent partial impairment to the psyche of 60-65% within three months of his initiating treatment with the claimant. He testified that the claimant has made no progress since that time and is still in need of weekly counseling sessions. However, he admitted he had no specific treatment plan for the claimant, and no change in the claimant's treatment plan was contemplated. It should be noted that the permanency rating was performed contemporaneous with the time when the claimant was awaiting the verdict on a number of criminal charges (see infra at # 46).
44. Dr. Toolan based his conclusion that the claimant suffered from organic brain damage on the Dartmouth tests. He was unaware that Dr. Kratzer was unable to say whether the claimant actually suffered an injury to his brain based on the claimant's current level of functioning. He also opined in April of 1995 that it was unlikely that the claimant's brain damage would improve in light of the Dartmouth test results, even though it appeared that some improvement had occurred in the claimant's testing by September of 1995 with Dr. Grubman.
45. Dr. Toolan on cross examination endorsed a number of symptoms in the claimant, including his mistrust, anger and irritation; his tendency to explode in anger, his emotional coldness and his sense of betrayal or lack of trust in relationships. The questions were virtually taken in whole from the reports of Dr. Richard Hamill, the claimant's psychologist at the time of the sexual assault.
46. Dr. Toolan testified that the claimant was anxiously awaiting the criminal proceedings, and that he threatened to leave his wife and family if he was found guilty. The charges included allegations of domestic abuse, for which the claimant was initially found guilty, a finding later overturned on appeal because of the claimant's improper waiving of a jury trial. Dr. Toolan indicated that Mrs. Reed was concerned about the threat and tried to help the claimant by her testimony at the trial. The claimant apparently did not believe that she had helped him enough, and he then threatened suicide. He also indicated a lack of trust in his attorney in the criminal case, as he later indicated a lack of faith in his lawyer in this matter.
47. Dr. Toolan never saw the claimant experiencing an angry outburst. He testified that the claimant felt anger, he was not physically aggressive. This opinion is belied by the incidents involving the criminal charges, where the claimant was accused of assaulting family members. It is also belied by evidence from other witnesses.
48. For example, Bruce Reed, the claimant's brother, testified that on one occasion in December of 1994 the claimant tried to break down Bruce's door because of some "misinforma-tion." The police were called because of the seriousness of the incident. David Nelson, a former friend of the claimant's, testified to an incident during a basketball game in 1996 where he and the claimant got into a shoving match, with a heated exchange of words. Mr. Nelson testified that the claimant reported the incident to the police, a fact confirmed by the claimant. Nothing has come of the report.
49. However, allegations of assaultive behavior in a domestic setting against the claimant are not limited to the period after the incident at Fay's. In 1986, the claimant was the subject of a final relief from abuse order based on his assault on his then girlfriend Kristy Clough. The claimant denied any actual assault, claiming that he only touched Ms. Clough
with a corner of a blanket while cleaning the apartment they shared during an argument. Given that a final order was issued after the claimant was given a chance to be heard, it is clear that the court did not accept Mr. Reed's description of the events in question. In addition, on the issue of violence to others, Dr. Hamill also noted in his 1990 letter, some two years prior to the incident at Fay's, that the claimant was fighting with others as a
response to the sexual assault in the mid 1980s. The claimant's assertion that he became more violent as a result of his injury at Fay's is not supported by extrinsic evidence.
50. The claimant has alleged that he suffered injuries to his knee that are chargeable to the injury at Fay's. He has produced evidence that he gained weight probably in response to certain medications that he was given for his psychiatric problems, and that he suffered injuries as a direct result of the weight gain. In support of this allegation, he has produced testimony from Dr. Daniel Robbins, an orthopedic surgeon. Dr. Robbins testified that the claimant had back surgery that was unrelated to the work injury in 1993 for an osteoblastoma, a benign bone tumor, and that a fusion was done because of the destabilizing of the back caused by the removal of the tumor. Thereafter, the claimant was trying to maintain an exercise program to help with the weight he was gaining as a result of the medications. He indicated that the claimant suffered an injury to his right knee while playing basketball, and that there was a correlation between the weight gain and the
claimant's injury playing basketball. Thereafter, according to Dr. Robbins, the claimant's problems with his knee affected his back, and the claimant began to experience back problems. These back problems were further aggravated when the claimant was thrown against a car by an assailant in December of 1994.
51. Dr. Robbins indicated that he determined that the claimant suffered a 5% impairment to his back as a result of the weight gain and the knee problems. He reached this number by deter- mining that the claimant suffered from a 25% impairment to his spine, of which one half was from the original surgery, one quarter was from the weight gain and gait abnormalities and one quarter was from the incident with the car. Dr. Robbins reached his
conclusion of a 5% impair- ment by allocating the claimant's permanency among the three causes of injury. Dr. Robbins attributed a 4% impairment of the lower extremity to the knee surgery, based on the AMA Guides.
52. The claimant and his wife testified to a number of changes in his behavior since the incident at Fay's. They assert that he has been distant and uncaring, and unwilling to help around the house or with the children, with a quick temper. Mrs. Reed indicated that her husband did not believe that she helped him enough in her testimony at the criminal trial, and that she was trying to help him in her testimony in this proceeding. She expressed her fear that the claimant would leave her if her testimony was not supportive to Dr. Toolan. To the extent that Mrs. Reed's testimony is offered as corroboration of the claimant's evidence, her credibility is in issue. In this regard, it is significant that the trier of fact, the judge, in the criminal case did not find Mrs. Reed credible.
53. There is direct contradiction to the claim that the claimant was not concerned about his wife or child in incidents reported in the medical records. In one case, Glen Cratty, the claimant's social worker, noted that the claimant was properly concerned about a proposed amniocentesis when Mrs. Reed was pregnant in the fall of 1995. On an earlier date in 1995, Mr. Reed had brought his stepson into Mr. Cratty because of concern after the boy had been sexually abused. Neither the claimant or his wife acknowledged these or other similar incidents.
54. The claimant testified to his sporting activities before and after the incident at Fay's. He produced a chart of his activities that he prepared with his wife's assistance. The chart shows that in 1990 and 1991, the claimant engaged in sporting events, including such activities as hunting, basketball, soccer, and bowling, in excess of 400 times a year. He testified that he would frequently engage in more than one activity in the same day. In contrast, the claimant alleges that, after the CO exposure in 1992, his activities have fallen to only about 100 occasions a year. He concedes that some of the fall-off is due to his injuries and his inability to participate during his recuperation from surgeries. However, he also claims that his lack of coordination, his inability to concentrate, and his discomfort in
large groups of people are the major reasons for the decrease in his activities.
55. David Gauthier testified for the claimant that he and the claimant have been bowling teammates for about 5 or 10 years, bowling in leagues two times a week, 35 weeks a year, and tournaments. Mr. Gauthier was the league secretary during the period in question. He testified that the claimant's average before the incident at Fay's was about 190, while it dropped about 10 to 15 pins for about two years after the incident. He indicated that the
claimant had kept scores for the leagues both before and after the incident, and that there was a deterioration in the claimant's adding ability after the CO exposure. He stated that the claimant gave up scoring for about a year, during which time he showed problems with his memory and his ability to carry on conversations. However, these symptoms seemed to disappear at about the time the claimant stopped taking the medications. Mr. Gauthier also
testified that the claimant was very well informed with regard to the rules of bowling and the leagues, and that he never lost the ability to argue well and cogently about interpretations of the rules. He also stated that the claimant never got into fights or disagreements on bowling nights, and that the claimant's scoring has improved significantly since he lost the extra weight he had put on.
56. David Nelson testified that he has known Jeffery Reed for about 15 years, during which time he was a friend of the family through the claimant's older brother Michael. Mr. Nelson has played basketball with the claimant for several years on Sundays at the high school and in pick-up games, as well as in the winter leagues where they played two times a week. He testified that the claimant was playing basketball within three weeks after the accident and has played regularly, except for times when he was injured, until about two months before the hearing. He testified that the claimant was a bit sluggish after the accident but that condition resolved fairly quickly. He also testified that he has seen the claimant since 1992 at a number of other local sporting events, including basketball, baseball, soccer and football games. He has observed the claimant socializing with people along the sidelines, laughing and talking. He has not observed any changes in the personality of the claimant since the incident. Mr. Nelson conceded that he was involved in the scuffle with the claimant in January, and that he was angry at the claimant for reporting him to the police because he was then on probation for offenses for which he was convicted the prior summer. He testified that the claimant was a nice guy "if you stayed on his good side" and that he does not know why he is on the claimant's bad side now. He also idicated that he would not be testifying now if the claimant had not trumped up the charge against him.
57. Mr. Nelson also testified that the claimant helped him out on a few occasions over the past few years on painting jobs. Mr. Nelson is a painting contractor, and has hired the claimant's brother Michael in the past. The claimant would show up on jobs where Michael was working, and would help out, climbing scaffolding and painting. The claimant never showed any adverse reaction to the fumes of the paints they were using.
58. Mr. Nelson also testified to a conversation he had with the claimant about a workers' compensation claim that Mr. Nelson had. He indicated that Mr. Reed gave him such advise as "Drag it out" and "They can't tell if your back hurts." Mr. Reed then went on to tell Mr. Nelson that "It's the same thing with the mind" and that "Fay's can't prove me wrong." Understand-ably, Mr. Reed denied ever making any of these statements.
59. The claimant's youngest brother Bruce testified with regard to the incident involving his door (# 48, supra). He also testified that, after he moved to Springfield, the claimant would drive up to visit him to go fishing. He testified that they used to hunt together before the incident at Fay's but have not since. He indicated that the claimant is much less coordinated since the CO exposure, taking an inordinate amount of time to tie flies for fishing. He also said that the claimant reacted adversely to the fumes from motor boats on two occasions, turning white and vomiting. Bruce Reed's credibility was called into question by his evasive answers and attitude in responding to questions regarding his possible involvement in the torching of the claimant's car. Having admitted on cross examination that he had been convicted of a number of offenses involving theft and other minor crimes, he reluctantly answered questions involving the time he was taken into custody in Manchester after the claimant's car was blown up. Apparently at the time of his apprehension, he had singed eyebrows and facial hair, and had someone else's wallet in his possession. The witness' explanation for these events was frankly incredible and reflected a fundamental lack of respect for the oath he took in testifying.
60. The claimant testified at three different times during this lengthy hearing. He was uniformly able to understand the questions placed to him, to respond appropriately to the questions, and to make logical connections between events in his life. He showed no memory lapses, except to the extent that his testimony did not conform to other documentary evidence, such as with regard to his school records. He was able to describe in great detail a number of events that he considered significant in his life, although he
uniformly testified in a manner tending to show the maximum amount of deterioration between the time before and the time after the injury, even when there was no support for this premise, and in fact evidence to the contrary. This testimonial behavior was consistent with that observed by Dr. Grubman who noted a tendency in the claimant to magnify his prior successes and later failures. The claimant consistently portrayed individuals who did
not support his claim as being unfair or antagonistic toward him, without any evidence to support his claim, and consistent again with Dr. Grubman's assessment that there were paranoid elements to the claimant's condition.
61. The claimant has presented evidence of his fee agreement with his attorney for a fee of 25% of the net recovery for temporary total disability and permanent partial disability compensation awarded. Subject to the limitations of Rule 10(a), this agreement is acceptable. The claimant has also produced evidence of costs in the amount of $4,134.29, some of which are disallowed. There is no basis for awarding the claimant's attorney reimbursement for travel and/or meals, and hence requests for $183.53, $92.38, $78.00, and $77.40 are disallowed. Additionally, an unexplained reimbursement to an office employee of $10.00 is disallowed. The claimant has requested an award of $450.00 for the deposition fee of Dr. Grubman when Rule 40.111(B) allows an award of only $300.00. Therefore, expenses in the amount of $3,542.98 are accepted as reasonable.
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. Where a claimant, as a result of a physical insult, suffers a mental trauma, that mental trauma is compensable. Since the parties agree that in this case the CO exposure at Fay's Drugs led to a mental trauma, the only question to be resolved is the nature and extent of the psycho-logical injury, if any.
4. The evidence that the claimant has PTSD is compromised by the fact that the claimant previously was diagnosed with this condition as a result of the sexual assault. Therefore, any claim that the claimant could not have created the symptoms of the condition, and that as a consequence his description must be an accurate portrayal of the claimant's condition, must fail. In fact, in this case, to the extent that the diagnoses are based on the claimant's report of symptoms as opposed to his performance of tests, the diagnoses are only as reliable as the claimant's report. The test results in this case are sufficiently erratic that little of use can be drawn from them. In contrast, the doctors' records are replete with the claimant's report of his varied symptoms, and are similarly replete with references to descriptions of symptoms with no physiological basis. Aside from the fact that this is an actual element of a somatoform disorder, it suggests that the claimant is engaging at the least in symptom magnification, a fact implicitly endorsed by Dr. Kratzer, one of the claimant's strongest supporters. Therefore, to the extent that a diagnosis is based on the claimant's reported symptoms, it is suspect.
5. Because of the unfortunate demise of Dr. Carroll, the trier of fact has no means of ascertaining whether the claimant's reports of PTSD symptoms was in response to prompting or cuing from Dr. Carroll. In light of the claimant's prior history, it is at least a possibility and one incapable of resolution.
6. I find that Dr. Grubman is more credible on the question of the claimant's condition. It is particularly noteworthy that Dr. Grubman, with substantial experience in the area of hypoxia and anoxia, initially based on the medical records recommended further neurological testing. This establishes that Dr. Grubman had no bias against the claimant at the beginning, but was interested in actively assisting in the resolution of the claimant's complaints. Dr. Grubman's interpretation of the claimant's problems only altered when he saw the claimant face to face for the first time, and observed an individual considerably at odds with the description in the medical records. In observing the claimant at the hearing, I also noted the discrepancy between the medical records and the claimant's current demeanor. I found the claimant not to be a credible reporter of facts, and confirmed specifically Dr. Grubman's finding that the claimant was incorrect in his reporting of, among other things, his high school performance. (I might add that the high school performance, aside from any other significance, so readily supports this analysis because it is a fact easily ascertainable by unbiased and uncontested records, and easily compared to the claimant's own assertions.) To the extent that my observations corroborate those of Dr. Grubman, I find Dr. Grubman to be credible.
7. It is also noteworthy that Dr. Kratzer, when advised of the scope of the claimant's current activities, altered his opinion about the claimant's capabilities. Coupled with his acknowledgment of the claimant's nonanatomic complaints and his amplified report of symptoms, this calls into question the apparently unified support for the claimant's contention that he is suffering from PTSD.
8. I accept Dr. Grubman's analysis that the claimant is suffering from a somatoform disorder that arose from the CO poisoning at Fay's Drug. I consequently adopt his evaluation that the claimant has suffered a 10 to 15% whole person impairment as a result of his psychological injury and I find that the actual impairment is 12.5%. I find that this evaluation is consistent with the reports of the claimant's associates of the claimant's
behavior in his social endeavors. While Mr. Gauthier was the only witness without a clear motive to alter his story for personal ends, his testimony did not support the claimant's claim for a greater level of impairment. Moreover, it is consistent with the efforts of the two vocational rehabilitation counselors to place the claimant in a light industrial setting since the beginning of this year.
9. The claimant's claim for benefits as a result of his knee injury and his further spine injury also must fail. The claimant's knee problems were associated with the substantial athletic activities of the claimant and a particular twisting injury. Dr. Robbins could not state with a sufficient degree of certainty the causative relationship between the claimant's weight gain and the injury, but only that there was a "correlation." This opinion is not adequate to establish the causal connection under the Workers' Compensation Act. Moreover, Dr. Robbins by his testimony has clearly established with regard to the claimant's back that there was a subsequent intervening event sufficient to break the chain of causation (if any) between the claimant's back problems and his injury at Fay's. That intervening event relieves the employer of any liability for the pre-existing and unrated injury to the claimant's spine. Gilbeau v. CEPCO, Inc., Opinion #24-95WC.
10. Finally, I find that the claimant is not entitled to any temporary total disability benefits after he left work at Crescent Manor Nursing Home. This is because, as pointed out by Ms. Strom-Henriksen, the claimant violated the terms of his agreement with his vocational rehabilitation counselor when he left that job without informing anyone of any difficulties he was having to allow an attempt at accommodation. It is irrelevant that he later obtained
approval from his health care providers for his decision, based once again on his suspect reporting of facts. Moreover, work for nearly 60 days with an unexcused departure from that job is equal to a successful return to work for purposes of the Workers' Compensation Act. Ms. Strom-Henriksen's determination that further vocational rehabilitation services were not warranted after that period was correct. According to Mr. Cratty and Dr. Carroll, the claimant was released to work in the fall of 1992. A claimant with a release to work is obligated to try to find work consistent with his release, and his right to terminate any work he finds is governed by requirements in the Workers' Compensation Act. His failure to comply with those requirements is fatal to his claim for further temporary total disability benefits.
11. Because the employer has acknowledged its obligation to pay permanency in accord with Dr. Grubman's opinion, I cannot find that the claimant has prevailed in this case. Accordingly, he is not entitled to an award of costs or attorney's fees.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. Crum & Forster Insurance Company, or in the event of its default Fay's Drugs, pay to the claimant permanency in the amount of 12.5% whole person impairment; and
2. All other claims be denied.
DATED at Montpelier, Vermont this 31st day of October 1996.
________________________________
Mary S. Hooper
Commissioner