CP# 88-258897 Maher v. Johnson & Johnson
Joan L. Mott
Administrative Supervising Judge of Compensation
Hunterdon Hills Plaza-1390 Route 22 West
Lebanon, New Jersey 08833
DEPARTMENT OF LABOR
DIVISION OF WORKERS' COMPENSATION
Docket No. 1988-258897
VALERIE C. MAHER,
JOHNSON & JOHNSON
Arthur H. Kravitz, Esq., Stark & Stark Esqs. for the petitioner;
Samuel J. Thomas, Esq., Bressler, Amery & Ross, P.C., for the respondent.
Valerie C. Maher was injured on September 4, 1986 when she was struck on the left arm and shoulder by a mail cabinet. On July 21, 1993 respondent admitted that Ms. Maher became permanently and totally disabled on February 20, 1992 as a result of this accident and the development of reflex sympathetic dystrophy (RSD). Commencing on August 24, 1996 and continuing until December 23, 1997 Ms. Maher was subject to surveillance by a private investigator. Based primarily on the tapes of that surveillance respondent filed an Application to Review or Modify the judgment entered on July 21, 1993. Specifically the respondent requests that the judgment be vacated and the petitioner prosecuted for fraud under N.J.S.A. 34:15-37. The respondent contends that the surveillance shows that the petitioner was not physically disabled but engaged in a conscious and deliberate effort to mislead the respondent and the court. Following the presentation of respondent's proofs petitioner moved to dismiss the application contending that respondent had failed to meet its burden of proof of a substantial change in petitioner's condition.
In addition to presenting the surveillance tapes in support of its position respondent presented the testimony of a rehabilitation nurse, Sandra Brown, R.N., Robert L. Knobler, M.D., Ms. Maher's treating neurologist and an expert in reflex sympathic dystrophy, Charles Semel, M.D., a board certified psychiatrist, and Louis Schlesinger, Ph.D.,a board certified psychologist. The respondent also presented witnesses who observed petitioner at Gatwick Airport and presented photographs of her at that location. Ms. Maher was also being treated by Bahdan Cehelyk, M.D., an authorized psychiatrist who was not presented for testimony.
The Surveillance Tapes:
Since all of respondent's witnesses opinions relied on the surveillance tapes I have reviewed these tapes carefully several times.
The first surveillance of Ms. Maher occurred on August 24, 1996. She is first seen at 9:24.27 am. From 9:24.27 to 9:25.17 (50 seconds) the petitioner walks from one side of her yard to the other looking at her flower garden. She picks off a flower and turns and waves to someone with her left hand. She enters her house and then exits again at 9:31.37 am. She walks around until 9:32.34 (57 seconds) when she again enters her house. She exits her house again at 9:33.01 and is partially out of sight on her porch until 9:33.40 (39 seconds) when she again goes into the house. At 10:12.23 she exits her house again and walks back and forth on her porch until 10:13.03 (40 seconds) when she again re-enters her house. She exits again at 10:13.16 and walks about, talks to a neighbor until 10:14. when she returns to her porch limping slightly, and disappears behind bushes on her porch while drinking from a mug until 10:30.58 when she re-enters her house. At 10:41.30 she exits her house and begins to rake a garden bed until 10:43.44 (2 minutes 14 seconds). She stops and rests for sixteen seconds and commences raking again at 10:44.00 until 10:45.16 (one minute 16 seconds). Then for a period until 10:45.53 she is out of sight. She starts raking again at 10:45.53 until 10:47.09 (one minute 16 seconds) when she stops raking and looks her garden over. At 10:47.29 she ascends her porch and is out of sight behind bushes but may be sitting down. At 10:55.00 she walks along her garden and slowly down the street until 10:58.58 when the surveillance is terminated. Altogether the petitioner is shown on this tape for less than 14 minutes of the approximately eight hours of surveillance.
On September 4 and September 20, 1996 surveillance was again conducted. The petitioner did not leave her home although it appears that the private investigator attempted to tape activity inside her home through a window. It also appears that home health aides came and went during this period.
On October 1, 1996 a driver arrives at about 7:00 am. He fetches and places a wheelchair in the trunk of his automobile. A health aide makes two trips to the car placing bags therein. Ms. Maher appears at her door at 7:16.59 am and walks slowly to the car with the aide's arm through her arm arriving at the car door at 7:17.31 am. It takes her to 7:17.42 am to sit down in the front seat when the aid assists her in placing her feet inside (about one minute). At 9:00.27 am Ms. Maher departs the car at her doctor's office. It takes her to 9:01 am to be seated in the wheelchair (33 seconds). She is then pushed in her wheelchair into the building. At 11:45.25 am she reappears in a wheelchair and is pushed to the car. At 11:45.40 she hands her aide several items she is holding in her hands and leaves the wheelchair and is seated in the car at 11:45.59 am (34 seconds). At 1:00.16 pm Ms. Maher arrives at home, exits the car carrying a pillow, and walks slowly toward her door. She stops and waits for her aide who again takes her arm and assists her to the porch where Ms. Maher sits down at 1:01.22 pm. She arises at 1:01.49 pm and enters her house (1.5 minutes). At 2:05 pm Ms. Maher is seen walking along her garden looking at her flowers. At 2:05.25 she ascends her porch and sits down until 2:05.46 when she arises again, walks several steps, bends over, and then moves out of sight (20 seconds). At 2:13.16 pm and for one minute she bends over either weeding or dead heading her flowers. She walks to her porch and out of sight at 2:14.30 pm (1.5 minutes). At 2:15.52 she commences to walk to her mail box, obtains her mail and walks back to her porch between 2:16.20 and 2:16.35 pm (1.75 minutes). Petitioner is seen on this tape for less than ten minutes.
On October 16, 1996 Ms. Maher is seen walking down a bank of steps with assistance and then to her porch where she sits down at 8:16.54 am. At 8:20 she arises and steps off the porch with assistance and walks to a car using a three pronged cane and with an individual holding her left arm. When she arrives at the car she stands, talks and hugs an aide, and then is seated in the car at 8:22.06 am. At 8:43.01 am the car reaches a new location and the driver takes a wheelchair out of the trunk. Ms. Maher is seated in the wheelchair (partially obstructed from the camera) and then wheeled into the building. At 10:57 am Ms. Maher exits the building and is wheeled to the car. She exits wheelchair and is seated in the car without assistance between 10:57.45 and 10:58.04. She closes the door herself. At 11:21 am she is walking with a cane and assistance to a car which she enters without assistance. At 11:36 she arrives home and walks slowly to her door using a three pronged cane. At 11:48.56 she exits her house without a cane and walked quickly to a mail box and returns to her door. Ms. Maher is shown on this tape for less than ten minutes.
On October 20, 1996 surveillance is commenced at 7:09 am. At 12:40 pm petitioner is on the porch but out of sight and a wheelchair can be seen on the porch. At 12:42.36 Ms. Maher is seen carrying chair cushions into her house. At 12:48 petitioner exits the house, walks down her walk and throws a box toward her curb. At 12:56 she is seen sweeping in a doorway and then is out of sight on her porch apparently still sweeping which she continues until 12:56.56. She then bends down into her garden and picks something up and enters her house. The petitioner is shown on the tape for less than 17 minutes.
On October 22, 1996, or some other date, the investigator can not recall when, surveillance commences at 8:02 am. The investigator later determined the date to be December 14, 1996. At 12:35 pm Ms. Maher is seen on a neighbor's porch where she stands and talks for about five minutes. During this time she holds an item in her left hand and swings it on one occasion. She also bends over on one occasion. Following that conversation she walks to her mail box and back to her door. She is seen for a total of less than eight minutes.
On December 15, 1996 the surveillance commences at 7:39 am and ends at 2:26 pm. At 11:36 am a Christmas tree is carried to the house by an individual not the petitioner. At 11:38 the petitioner exits her house and sweeps her porch and walks about until 11:40.50. During this time the petitioner bends from the waist several times. She re-enters her house at 11:41 am. She is outside her house for no more than four minutes.
On Thursday, February 17, 1997, the investigation commences at 6:45 am. At 8:09 am a driver and aide loaded a wheelchair and other things into a car. At 8:10.30 Ms. Maher appears carrying a pillow and blanket and walks unassisted to the vehicle and sits in the car. The aid assists her in placing her feet into the car. At 9:43 am the car and its occupants reach Philadelphia where the driver has some difficulty setting up the wheelchair. The petitioner is seated in the chair but this operation is partially obscured. At 12:46 pm the petitioner is wheeled back to the car but this activity is almost completely obscured. At 1:39 pm there is footage of petitioner entering a convenience store with some assistance, existing the store, and getting into the car without assistance. At 2:27 pm the car and occupants arrive home. Ms. Maher exits the car, stops and talks to a neighbor for several minutes, and pets a dog. She then walks to her porch at a good pace and enters her house without assistance. She is seen for less than ten minutes.
On July 22 and 23, 1997 petitioner's house was under surveillance but she was not seen.
On December 23, 1997 additional surveillance was conducted. On that day Ms. Maher walked from her home to her mail box at 10:27 am, again at 10:40 am, and 10:55 am. At 10:58 am she walked to a neighbor's house, talked to her neighbor, and returned home. She was outside her home for no more than ten minutes.
On December 24, 1997 the petitioner was not seen by the private investigator.
1. The manner in which the tapes were edited/spliced can give the impression that Ms. Maher was engaged in sustained physical activity. Close attention to the times shown on the tapes disclose that all of her activities were limited in time.
2. Surveillance was carried out on thirteen occasions over a period of a year and four months. On five of these occasions petitioner did not step outside her house. On three other occasions petitioner had doctor's appointments of which respondent was aware. Surveillance was carried out for approximately 104 hours. Petitioner is seen on tapes for approximately one and one half hours.
3. Petitioner only used the wheelchair on the occasions when she had a medical examination.
4. Petitioner appeared less able to ambulate when being transported to medical examinations.
5. All of Ms. Maher's outside activities were close to her home - never more than 100 yards according to the private investigator.
6. On occasion, Ms. Maher is seen resting her left hand against her left hip.
A second private investigator testified that he had observed Ms. Maher at Gatwick Airport in London. According to him, the petitioner was transported from the Passport Control area by golf cart to an arrival area where passengers can be picked up by car. She was left with her luggage and waited two and one half hours to be picked up. During that time she sat or got up and walked around, sometimes carrying her cane but "not really" using it. She walked down a series of graduated ramps to her brother's car not using her cane, according to this witness. However, a picture taken by this witness shows her cane in the right hand and she appears to be using it.
On cross examination the private investigator testified that in preparation for his surveillance he ran a Division of Motor Vehicles check which revealed that Ms. Maher had no vehicle registered to her for a three year period prior to the commencement of the surveillance. During the entire period of surveillance the petitioner never was more than 100 yards from her home.
Petitioner was deposed prior to the release of the tapes to her attorney. During that deposition the petitioner stated that her ability to walk had deteriorated over time and that she cannot walk safely although she also stated that when she awakes feeling good she does go outside without the wheelchair. She also stated that she sometimes can rake in her garden and sweep if she gets dirt on her walk. She also states that she can and does walk around her block alone. She stated that she can touch the top of her head with her right hand but that she can only raise her left hand a few inches because of pain and that hand is in spasm. She states she needs help in dressing. She is able to bend at the waist but with pain. Ms. Maher testified that she can't carry anything heavy but can carry a pillow. When asked about her trip to England she stated that she didn't have to walk through the airport because her brother was able to pick her up at the door and she was taken to the door by wheelchair.
Sandra Brown, who describes herself as a "nurse case manager" and is an employee of Consolidated Rehabilitation Company, was assigned to Valerie Maher from November 1994 until January or February 1998. Ms. Brown testified that she has been a registered nurse for more that 30 years - she is a certified rehabilitation nurse and she holds a Master's degree in human development. During this assignment she frequently visited Ms. Maher at home, more frequently spoke to her on the phone, attended visits to treating physicians (including being present in the examining room while Ms. Maher saw her physicians for treatment and follow up care), arranged for "independent" medical examination and functional capacity evaluations. This assignment commenced at or about the time 24 hour nursing care was prescribed for Ms. Maher.
Ms. Brown described her responsibilities as
"... to determine the status of a patient, to determine their needs, to assure that all of their needs that are prescribed by a physician are supplied, and to assure all treatment is given as prescribed, and to do a cost projection for the insurance company."
Respondent's attorney described Ms. Brown's job as
"It's a management technique used by the insurance company to be able to monitor medical treatment."
Her function could be described as an investigator for the insurance company, obtaining access to petitioner's home and doctor's appointments by presenting herself as a nurse, and using that position of trust to report any "inconsistencies" of petitioner's behavior to the insurance company.
Ms. Brown testified that when she first visited Ms. Maher on November 1, 1994 she took a "history" of the accident suffered by Ms. Maher, the treatment she underwent for a severed ulnar nerve, the subsequent diagnosis of RSD, three additional surgeries at Somerset Medical Center and approximately eleven other surgical procedures at Thomas Jefferson University Hospital, including implants, muscle resections, removal of ribs for thoracic outlet syndrome and several nerve blocks. Ms. Maher complained of constant severe pain, fractures resulting from falls, difficulty sleeping, depression requiring admission to Carrier Foundation, loss of function in the left hand, and the progression of the RSD. Ms. Brown observed Ms. Maher as "very, very, debilitated", very stiff , and in "obvious pain". Ms. Brown met the petitioner at her visits to Dr. Robert Knobler, the authorized treating neurologist and an expert in the treatment of reflex sympathetic dystrophy. Ms. Brown was present at each visit, talked to the doctor following each visit and obtained copies of the doctor's notes after each visit. Ms. Brown described the petitioner's demeanor, physical complaints and condition at each visit. She described the referral to hospitalizations for additional epidural blocks and for treatment of abscesses resulting from injection of pain medication. She described Ms. Maher's condition during home visits, even noting that she found Ms. Maher in bed, watching television, and with a cat sleeping on her bed. On most occasions she found Ms. Maher in bed or sitting in a chair in her living room some five or six steps from her front door. She described trips to Somerset Medical Center when needles used for injection of pain medication (self administered) broke off in Ms. Maher's thigh or when falls occurred. On June 7, 1995 when Ms. Brown arrived for a visit at Ms. Maher's home Ms. Maher answered the door herself, appeared more alert and responsive than on previous occasions, standing and walking the "four steps" from the door to her chair. Then on February 1, 1996 a new wheelchair was delivered to Ms. Maher's home. When Ms. Maher saw the new chair she got up out of her chair and walked over to the wheelchair without assistance, sat in it, walked around it, sat in it again, and wanted a demonstration of how it worked. This, according to Ms. Brown, took five to ten minutes and Ms. Brown was "totally surprised". Ms. Brown was at Ms. Maher's home for one and one half hours at that visit. She never expected Ms. Maher "to move around like that." Ms. Maher told Ms. Brown she was thrilled and very anxious for spring to come so she could go outdoors and walk with the wheelchair. And then on February 5, 1996 Ms. Maher went to see Dr. Knobler without telling Ms. Brown. During the spring and summer Ms. Brown met the petitioner at Dr. Knobler's office and Ms. Brown observed that Ms. Maher was friendly and more animated but still demonstrated physical infirmities such as turned in feet and a splinted left hand. Ms. Maher reported that she had gained weight over a period of time but had then lost some 60 pounds. She told Ms. Brown that she was going on vacation to Niagara Falls by car with her friend Ken.
On September 17, 1996 Ms. Maher had an appointment with the physician that was treating abscesses resulting from pain medication injections. Ms. Brown showed up to attend this doctor's visit but Ms. Maher had finished with the appointment when Ms. Brown arrived. Ms. Maher was crossing the parking lot, carrying a cane, but wasn't using it in the parking lot. She stopped to show Ms. Brown that her abscesses had all healed up. Finally Ms. Brown was successful in having Dr. Knobler prescribe a functional capacity test. Ms. Brown reported that Ms. Maher attended the test and was cooperative but "frequently stated" that she was unable to do required activities. Several "independent" medical evaluations were scheduled and kept with Ms. Brown's choice of pain specialists. On September 30, 1997 Ms. Maher asked to return to the doctor who had treated her for recurrent abscesses on her thigh. Ms. Brown told her the insurance company would not pay for such treatment since Dr. Knobler had ordered oral medication instead of injections. After October 5, 1997 Ms. Brown's activities were devoted to preparing to testify in this proceeding.
According to Ms. Brown, Dr. Knobler never performed a "clinical examination" at any of Ms. Maher's visits.
On September 26, 1997 Ms. Brown, Charles W. Bergman, a claims adjuster for Kemper Insurance Company, and Richard Ulbrich, the investigator who exposed the surveillance tapes, met with Dr. Knobler and demonstrated the tapes to him. Following that meeting Ms. Brown prepared a letter for Dr. Knobler to sign terminating his treatment of the petitioner. On that date all treatment, by Dr. Knobler and others, was terminated by the insurance company.
On cross examination Ms. Brown stated that she wanted a functional capacity test performed because,
"I was seeing that there were some times she seemed to be doing more than I thought she was able to do, and I thought we needed some base line to determine her exact functional ability."
Ms. Brown had difficulty remembering many details on cross examination. Further, it is significant that when the petitioner's attorney demanded the records of Consolidated Rehabilitation Company prior to the appearance of Ms. Brown, he was provided with a copy of a notebook that Ms. brown brought to court to refresh her recollection and was assured that this notebook contained all records dealing with Ms. Maher. Petitioner's attorney issued a subpoena for all Consolidated Rehabilitation Company records dealing with Ms. Maher. Respondent's attorney advised Consolidated Rehabilitation not to comply with that subpoena. It required an order of this court for Consolidated Rehabilitation to produce its entire records and they were considerably more extensive than the information contained in the notebook. In explanation Ms. Brown said that she had not put the records together and respondent's attorney stated that he didn't know there were additional records.
Robert Knobler, M.D.
Robert Knobler, M.D., a board certified neurologist with a specialty in the area of clinical neurology, testified on two occasions for the respondent. Dr. Knobler is the founder of the Reflex Sympathetic Dystrophy Clinic at Thomas Jefferson University Hospital and has treated over twelve hundred patient diagnosed with RSD. Dr. Knobler undertook treatment of Ms. Maher in March 1989. At that time he diagnosed Thoracic Outlet Syndrome (TOS), RSD in the left arm, ulnar neuropathy, and headaches. He prescribed nerve blocks and consideration of a nerve stimulator implant. He saw Ms. Maher six times during 1990 and his treatment included the recommended implantation of a stimulator, diagnostic tests and nerve blocks for pain. The doctor was of the opinion that Ms. Maher was totally disabled. The petitioner continued self administration of Demerol injection for pain control. The doctor continued treatment through 1991 and 1992 noting that Ms. Maher complained of increased symptoms and complained of frequent falls. She continued injections of Demerol. He reported that Ms. Maher fractured her left ankle in July of 1992 while walking at home and her hand became "dystonic", that is, the fingers were flexed, the hand turned in, and the arm held in a neutral position close to her body. According to the doctor, this position is quite characteristic of thoracic outlet syndrome, and a position that is associated with increased comfort and decreased pain. To the doctor it indicated a progression of Ms. Maher's problems.
In 1993 Dr. Knobler noted that Ms. Maher had complaints of difficulty breathing, difficulty moving her left shoulder, difficulty standing, and poor balance. The doctor also described "dystonic positioning" of petitioner's feet, that is, bilateral inverted flexed feet, and intolerance to socks and shoes. The doctor believed that Ms. Maher's condition was getting worse based on his findings of limitation of movement of her shoulder from disuse, the continued pain in the left arm, the dystonia in the left hand, the giving way of her leg, pain in the neck and shoulder, and tightness in the chest upon taking a breath. The doctor continued to treat. The petitioner continued to self administer Demerol injections for pain. She was prescribed other medication and underwent epidural injections. In August 1995 the doctor described worsening of the dystonic posturing of Ms. Maher's feet, a complete crossing of the feet. The doctor stated that he could not voluntarily place his own legs in the severe angle he described in Ms. Maher. In the doctor's opinion it would have been unable for the petitioner to walk because she would have bumped one foot into the other. The doctor also became concerned regarding the abscesses that developed as the result of Ms. Maher self injecting Demerol and prescribed oral medication.
Dr. Knobler continued treatment into 1996 and noted that petitioner continued to experience dystonic posturing of both feet and her left hand. On October 1, 1996 she complained of increased perspiration and used oral Demerol every three hours which did not control her pain. Her left hand was in a brace and a x-ray of both feet did not show demineralization. She complained that her feet and left leg were unreliable. She used a cane in her right hand in which she experienced pins and needles. In 1997 Dr. Knobler reported that petitioner's problems continued to worsen and he concluded that she was permanently and totally disabled and needed a full time attendant - she was unsafe to be on her own.
After Dr. Knobler was shown the surveillance tapes he executed a letter, drafted by Sandra Brown, stating the he "did discontinue all treatment as above" but when he testified he stated that he did not intend that all medical treatment terminate. He stated, "The letter clearly states that I would no longer provide medication. I would no longer provide home health care and that I would no longer provide treatment." When asked if he intended the treatment of Dr. Cehelyk to terminate, he pointed out a note in his file dated September 30, 1997 indicating that Ms. Maher was to see Dr. Cehelyk for further medication. The doctor based his termination of benefits on the fact that when he saw Ms. Maher her left arm was in a fixed flexed position unable to move but that the tape showed her holding a door. In February 1997 when the doctor saw Ms. Maher she had a splint on her arm and a pillow beneath it. She carried a cane and favored her left leg but the surveillance tape and photographs showed her carrying a bag on her arm and using the arm normally. He then terminated treatment declaring that he had been angry because he had been lied to and taken advantage of. He summarized his position as follows:
"My basic view is that the initial problems that she has consulted me for treatment are substantially better to the degree that she can perform activities of daily living without consequence and likely can perform degrees of employment without consequences and that there is no evidence that she is completely and totally permanently disabled the way I had once believed and that is based in large part on viewing of the video tape."
The doctor went on to observe:
"That little broom and little rake is sufficient for her to carry on normal activities of daily living like carrying a purse and using her arms."
Yet, in spite of all of his angry testimony the doctor conceded the existence of clinical findings consistent with the diagnosis of RSD, the atrophied left arm, discoloration in the legs, change of temperature in bare feet, swelling and mottled skin. He went on to testify:
"These are observable signs of physiologic phenomenon and they do not indicate disability. The context of disability is separate and discontinuing from the physical signs."
He also stated that he did not know how far the petitioner could walk or how long she could stand.
Charles Semel, M.D.
Charles Semel, M.D., a board certified psychiatrist, examined Ms. Maher. Prior to that examination he reviewed the testimony of respondent's witnesses, the surveillance materials and some medical records. At examination be obtained a history of the work related accident and Ms. Maher's "social and personal" history. The first observation of Dr. Semel was that petitioner was well dressed and groomed. According to this expert being well dressed and well groomed is "not consistent with someone with severe pain or severe depression" because, according to Dr. Semel, "Such patients often take little interest in grooming, hair, clothing and such." Dr. Semel also described the petitioner as relating in a "manipulative and controlling manner" which the doctor stated indicates that Ms. Maher enjoys being the center of attention and controlling others. He next described the petitioner's memory as intact, a finding inconsistent with serious depression. Her affect was appropriate and mood neutral with no evidence of undue elation or depression, again an observation not consistent with depression, according to this expert. He described Ms. Maher as normal with respect to judgment and comprehension.
Based upon these observations the doctor provided a diagnosis pursuant to the Axis system provided by DSM-IV. The Axis I diagnosis of this expert was malingering. He testified:
"Malingering is a pattern of upset wherein a person produces an illness often to escape from something, escape responsibility, escape from work pressures. It's conscious and it invokes the need to be freed from responsibilities, a need to take a dependent position in life freed from those stressors such as work and managing for one's self. In this area, the elements of factious disorder arises too, the creation of one's own symptomology. So this patient doesn't entirely fit under one category. She fits under these two categories, the primary one being malingering, the second one being factitious illness. Malingering and factious illness are both conscious. The patient is aware of what he or she is doing. Malingering is often associated with some form of payoff, getting out of the military, getting relief from work pressures, being relieved from jury duty, being relieved from various forms of responsibility whether workplace or in the home or the community. The factitious disorder has more of an element of self-injected illness. The injection of several substances, the seeking out of unnecessary surgical procedures. The factitious patient does that. The malinger usually does not do that. So again, we are seeing elements of both conditions in this patient, elements of looking for an escape from responsibility yet also submitting herself to medical and surgical procedure which really can't work because the illness or the disabilities or injuries don't exist."
He explained that Ms. Maher has a pre-occupation and fixation upon the functioning of her body and limited insight in the area of her pain disorder and in the use of medication. According to Dr. Semel the petitioner gravitates to the health care system to be sheltered and cared for, seeking attention and protection at a hospital's emergency room, a doctor's office. "The key to the patten I think is the abnormality."
The doctor continued:
"The patient is an emotionally unstable individual with dependent needs. She seeks ways to escape responsibility and every day pressure. Following her divorce, being left in a new country, she became increasingly unable to cope. With a minor illness, a blow to the left elbow occurred, what followed was far in excess of what the injury required. The patient developed the world of being the patient, being dependent, needing help and supervision. I think the pain relieving medications, the opiates and the synthetic opiates, were used to address the unhappiness helping her to escape from everyday realities, hide from these realities with the sedation that the medications would produce. The pattern then became self generating, ongoing, continuing."
The doctor failed to provide a diagnosis of Axis II of the DSM IV because, in his opinion, she did not display evidence of mental retardation or a personality disorder. He did not make a diagnosis with respect to Axis III because he did not examine her physically. With regard to Axis IV the doctor found no acute serious stressors in her environment. He testified that Axis V was difficult to assess, that is an assessment of actual functioning. He testified:
"I couldn't get a sense of how she could function when she chose to function. Looking at the surveillance films when she was being watched, she functioned at a very low level, that essentially of an invalid, somebody barely able to walk, barely able to climb stairs, get in and out of a car. When she was not aware of being observed, she functioned at a very different level, being able to go upstairs rapidly, use both arms, use both legs, actively and aggressively. So too, in the documents, vacations were described, she functioned well without nursing attention, without medical attention, journeys of great distances across the country to another country. So too, nursing observations at time revealed very normal behavior."
Cross examination of Dr. Semel was interesting. He conceded that the forensic context of the examination in and of itself gave rise to the diagnosis of malingering. He testified that the physicians who performed the three ulnar nerve releases, the thoracic outlet release, and the implantation of a nerve stimulator all performed unnecessary surgery. He also suggested that a January 28, 1998 admission to Bayonne Hospital was a possible attempt at suicide, particularly given the prior history of a suicide attempt. He agreed that among the diagnosis in DSM IV for suicidal ideation malingering is not included.
Three additional observations of this expert are of interest. First, that there was no evidence that Ms. Maher suffered from pre-existing psychiatric disorder prior to the compensable accident. Second, Ms. Maher copes poorly with stress. Third, Ms. Maher was abusing medications as the result of an addiction to the medications prescribed as a result of the compensable accident. This expert also opined that because Ms. Maher was emotionally unstable and should not be left without a safety net of treatment.
Louis Schlesinger, Ph.D.:
Louis Schlesinger, Ph.D., performed a number of psychologic test of petitioner but only after he had reviewed the testimony of respondent's witnesses and the surveillance material. Based upon this material supplied by respondent, he assumed that petitioner suffered from no physical disability. To summarize the results of this expert's tests it appears that the petitioner was hostile and angry throughout the testing. The Bender-Gestaldt results displayed average intelligence but anger and lack of effort. The Rorschach test demonstrated hostility, anger, and difficulty with interpersonal relationships. The Thematic Appreciation test is designed to have the patient create a story which reveals herself. Again Ms. Maher was hostile and stated that the crying individual pictured in the test may have just learned that she lost her workers' compensation pension. The Projective Figure Drawings test asked the petitioner to draw the worst thing she could think of. Ms. Maher drew a picture of a sinking ocean liner which, according to this expert, was "noteworthy" because many disabled people draw pictures of their disability. The Wechsler Adult Intelligent Scale showed the petitioner to be of average intelligence. The Minnesota Multiphasic Personality Inventory demonstrated that Ms. Maher tried to exaggerate her pathology and to appear socially desirable. Dr. Schlesinger came to a final conclusion that Ms. Maher suffered some depression that resulted from this litigation but not from the compensable accident. This was based upon his assumption that petitioner suffered no physical disability from the compensable accident.
There are voluminous treatment records in evidence.
Following a careful review of all of the evidence presented in this application of respondent I deny its application to vacate the Judgment entered on July 21, 1993 and to find that petitioner committed fraud as defined in N.J.S.A. 34:15-57. Giving respondent all inferences which can be drawn from the evidence presented, the relief sought simply is not supported by the evidence.
I set forth above my observations following the review of the surveillance tapes. It is clear that Ms. Maher acted more disabled while on the way to her doctor's appointments than at times when she walked to her mail box or did a modicum of work in her small flower bed but to ask that I find that Ms. Maher is not physically disabled and has engaged in a conscious and deliberate effort to mislead the respondent and the court since 1986 is a wild assertion by the respondent considering only those tapes that show what is probably symptom magnification, disregarding its own expert, Dr. Knobler, and ignoring all facts that do not support its thesis of fraud.
These facts include:
First, Dr. Knobler testified that Ms. Maher did in fact suffer from reflex sympathic dystrophy and outlined objective evidence of that diagnosis; specifically, an atrophied left arm, discoloration in the legs, change of temperature in bare feet, swelling and mottled skin. Her symptoms were the symptoms of a patient with RSD. At examination she demonstrated a positioning of her legs that the doctor said would have been impossible for him to have duplicated with his own legs. Dr. Knobler was angry and felt used by Ms. Maher because she convinced him that she was so disabled in 1994 that she needed 24 hour health aide care but that by the fall of 1996 she was "substantially better to the degree that she can perform activities of daily living without consequences and likely could perform degrees of employment without consequences ... that little broom and little rake is sufficient for her to carry on normal activities of daily living like carrying a purse and using her arms."
It should also be noted that Dr. Knobler didn't discharge her from all treatment which is how the insurance would like to interpret the letter that its investigator Brown prepared for his signature. Dr. Knobler merely meant that he wasn't going to treat Ms. Maher any more.
Second, Sandra Brown, the nurse-investigator, visited Ms. Maher at her home, many times apparently unannounced, and always found her in bed or in a chair some four or five steps from her front door. Because Ms. Maher became excited and interested in a new wheelchair and spent five to ten minutes sitting in it and walking around it and asking that it be demonstrated, Ms. Brown decided that Ms. Maher was not as disabled as she appeared.
Third, during a year and four months of surveillance Ms. Maher never ventured more than 100 yards from her door. On five of the thirteen days of surveillance Ms. Maher never left her house. On three other occasions respondent was aware that Ms. Maher would be attending a doctor's appointment. The actions seen on these tapes are of Ms. Maher walking to her mail box, talking to her neighbors, doing a little weeding, sweeping her walk, petting a dog. The most dramatic action shown was Ms. Maher throwing a cardboard box toward her curb.
Fourth, although Ms. Brown and the private investigators reported that Ms. Maher did not "use" a cane in a parking lot at Somerset Medical Center or at Gatwick Airport she had the cane with her. As noted above, it appeared to me, from photographs in evidence, that petitioner in fact was using the cane at Gatwick.
Fifth, the private investigator determine that Ms. Maher did not have a registered motor vehicle.
Sixth, there is an abundance of objective medical evidence that Ms. Maher suffered a compensable accident to her left elbow. She underwent three surgeries for ulnar nerve transposition and/or revision. Hospital records show finding on pre-surgical testing confirming the need for these surgeries. She underwent thoracic outlet release after additional testing confirmed the need for this procedure. There have been multiple admissions for nerve block procedures. She was treated for depression at Somerset Medical Center and at The Carrier Foundation.
To allege that all of Ms. Maher's physical problems were feigned fraudulently for the purpose of obtaining workers' compensation benefits is simply not supported by the record. Respondent seems obsessed with that thesis. As indicative of that obsession is the footnote at page twelve of respondent's brief.
"The home health aides were separated from their employer (County Home Health) immediately after Dr. Knobler discontinued his prescription for the aides. The respondent made extensive, but unsuccessful, efforts to locate these individuals for testimony. It is believed that the aides left New Jersey based upon their role in the petitioner's fraud."(emphasis added)
There is absolutely no basis for this assertion in the record.
As to the extent of petitioner's disability and whether she is no longer permanently and totally disabled. The only evidence that such is the case are the surveillance tapes. As noted above, the "actions" of the petitioner shows that she is not bed ridden and that on occasion she can walk around her neighborhood and nothing more. Dr. Knobler testified that she has improved and can use a little rake and little broom from which he extrapolates that she can take care of her personal needs and carry a pocketbook and perhaps be employed without consequence. This is insufficient to show petitioner is not permanently and totally disabled.
Sandra Brown's actions on behalf of respondent are troubling. While presenting herself as a nurse to Ms. Maher she reported "inconsistences" such as Ms. Maher walking four or five steps to answer her front door, becoming excited about a new wheelchair, or showing off healed abscesses, to the respondent. The sum total of her testimony supports the premise that Ms. Brown was employed by the respondent, not to coordinate treatment, but to inform respondent of any information she could develop to permit the respondent to terminate workers' compensation benefits. In spite of the fact that she visited the petitioner unannounced, the most she was able to report was some modest walking about.
Unfortunately the testimony of Dr. Semel and Dr. Schlesinger was not particularly helpful to the court in deciding this case because they started from the assumption that Ms. Maher suffered no physical disability. However, they do confirm the need for treatment.
As to treatment, Dr. Knobler did not testify that petitioner no longer required treatment, only that he would not treat her and he expected that Dr. Cehelyk would continue the necessary medication. Dr. Semel testified that Ms. Maher should be under psychiatric treatment because of her instability and because of her addiction to drugs arising from treatment for the compensable disease.
Therefore I order that respondent continue payment of permanent total disability benefits and provide necessary medical treatment.
There will be a stenographic fee to $1,500.00 to William C. O'Brien Associates and $300.00 to John F. Trainor, Inc. payable by respondent.
Petitioner's attorney is directed to provide an affidavit of services and cost for the purpose of fixing his fee.
July 28, 2000
Joan L. Mott,
Supervisory Administrative Judge of Compensation