CP# 01-20269 Mucciolo v. Trump Plaza Hotel and Casino
DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
DIVISION OF WORKERS’ COMPENSATION
ATLANTIC CITY, ATLANTIC COUNTY DISTRICT
PASQUALE MUCCIOLO, JR.,
TRUMP PLAZA HOTEL AND CASINO,
BEFORE: HONORABLE COSMO A. GIOVINAZZI, III
Judge of Compensation
KAVESH, PANCARI, TEDESCO & PANCARI, P.C.
By: MICHAEL J. GRUCCIO, ESQ.
727 Landis Avenue
Vineland, New Jersey 08362
Attorney for the Petitioner
CHRISTOPHER M. DAY, ESQ.
3123 Atlantic Avenue, Suite 100
Atlantic City, New Jersey 08401
Attorney for the Respondent
This is my reserved decision in the case of Pasquale Mucciolo, Jr. vs. Trump Plaza Hotel and Casino, Claim Petition 01-020269.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Petitioner was employed as a slot attendant by Trump Plaza Hotel and Casino on June 1, 2000 when he met with a compensable accident in the course of employment. At the time, petitioner was earning a gross weekly wage of $540 per week, giving rise to a temporary disability rate of $378. Subsequent to the accident, respondent provided petitioner with medical treatment and temporary disability benefits. In February and March of 2002, I held a hearing in this case to determine whether petitioner was entitled to neuropsychological testing. At that time, petitioner testified that he suffered a laceration to the top of his head on June 1, 2000 while working on a slot machine. Petitioner was leaning into a slot machine, removing the screws that hold the bottom part of a piano hinge that is attached to the door. As he removed the last screw, the door, which weighed 30 to 40 pounds struck him on the top of the head. He estimated that the door traveled, from its hinge position, approximately eighteen inches before it struck him. Petitioner suffered a laceration to his head which was estimated to be 2.5 centimeters in length. Petitioner was treated at the Atlantic City Medical Center where a head laceration was stitched. The emergency room records report that petitioner was dazed, and complained of headache and dizziness. Petitioner was seen on two separate occasions at the Atlantic City Medical Center because of head pain and dizziness. Petitioner was subsequently hospitalized in the psychiatric unit of Atlantic City Medical Center on September 25, 2000 for a period of one week. During his hospitalization, he came under the care of Dr. Rita Kammiel, M.D., a board-certified psychiatrist who treated him continually thereafter for a period of two years and two months until November of 2002.
During the course of that treatment, Dr. Kammiel recommended that the petitioner receive neuropsychological testing because of his complaints of memory problems, and in order to rule out cognitive impairment.
After an abbreviated hearing, I ordered respondent to provide neuropsychological testing in a decision dated June 30, 2002. At the time of that hearing, petitioner complained about memory problems, and indicated that he felt like bugs were crawling in his head at the site of his laceration. He complained of a numbing sensation in his head, and problems with concentration. In his testimony, petitioner indicated that he had problems remembering a lot of things. He claimed that he had to leave a note to himself in order to flush the toilet after going to the bathroom. He indicated that he and his wife left notes all over the house, on the desk and on the computer to remind him to do certain things. He explained that he had put milk in the closet after eating, rather than in the refrigerator, and he had to be reminded to turn off the coffeepot.
Notwithstanding his memory problems, however, petitioner gave a detailed description of his work as a slot machine operator. While he claimed to have some memory difficulties at work, petitioner explained that every slot machine has its own characteristics, and that he would go through a series of steps to bring a machine into workable condition. He indicated at that time that he received some assistance from co-employees, but did not appear to be suffering any lack of concentration at work. In fact, on November 3, 2001, almost one and one-half years after his accident, petitioner scored higher on his performance evaluation than he had during the evaluation of September 6, 1999. The greatest strengths reported in his evaluation were employee/customer relations, and job knowledge/technical skills.
The sole issue during petitioner’s 2002 hearing was whether the respondent should provide neuropsychological testing as recommended on five separate occasions by his authorized treating psychiatrist, Dr. Kammiel. Given the nature of petitioner’s head injury, the fact that he was still under authorized medical treatment, and the fact that respondent did not produce any medical evidence to suggest that the neuropsychological testing was inappropriate, I ordered respondent to provide neuropsychological testing, and recommended that it be provided at Bacharach Rehabilitation Hospital, adjacent to the Atlantic City Medical Center, Mainland Division. Pursuant to my order, petitioner underwent neuropsychological testing conducted by Dr. Mark J. Chelder, Ph.D. in July and August of 2002. Dr. Chelder conducted a clinical interview on June 27, 2002, and thereafter administered neuropsychological testing on August 5, 2002 and August 15, 2002. He issued a report to Dr. Rita Kammiel on September 3, 2002. Thereafter, in November of 2002, respondent terminated the petitioner’s psychiatric treatment with Dr. Kammiel.
Petitioner filed the current application for temporary disability and medical benefits on November 12, 2003, seeking the reinstatement of psychiatric treatment with Dr. Kammiel. After conferencing the Motion with the attorneys for petitioner and respondent, the parties agreed to arrange updated psychiatric evaluations. Thereafter, petitioner was evaluated by Dr. Kammiel on January 15, 2004 and petitioner’s Motion was supplemented by her report (P-12). On December 22, 2003, the petitioner was evaluated for the respondent by Dr. Walden M. Holl, Jr., M.D. A hearing on the motion began on January 23, 2004 when petitioner testified concerning his current complaints and need for medical treatment. The petitioner testified at that time that he was not sleeping good, that he was still forgetful, and that he had a difficult time focusing. He testified that he still experienced the sensation of something crawling out of his head, that he had crying spells, and that he had difficulty remembering things. Even though petitioner was testifying on January 23, 2004, he claimed that he was unable to remember what had occurred at Christmas in 2003, and that he began crying when he saw videos of his children and grandchildren opening their gifts. He indicated that his wife still wrote notes for him in order to assist his memory. He was now fuzzy from what he did during his employment at Trump Plaza. When asked about that employment, he explained that he did a lot of different things, indicating that he worked on machines. He initially testified that he had stopped working at Trump Plaza because a doctor had told him that he could no longer work. However, he subsequently remembered that his job was terminated after he was accused by the respondent of taking money from the slot machines on which he was working. He denied that he took money, but it appears to me that that was the reason for his termination.
During his cross-examination on February 10, 2004, petitioner claimed that he could not remember his Social Security number, that he did not remember his house number at his home in Mays Landing, and that he did not remember his zip code. He also claimed not to remember the date on which he was testifying. He acknowledged again that the only way that he could remember things at his home was through his wife leaving notes for him. He stated that he did not remember whether he put the milk into a closet, versus the refrigerator, acknowledging that he gets confused at times and put things where they do not belong.
After listening to petitioner’s testimony and observing his demeanor in the courtroom during his direct and cross-examination, as well as his demeanor in the courtroom prior to and at the conclusion of both hearings, I felt some skepticism regarding petitioner’s credibility. I noted that he made gratuitous comments while sitting in the courtroom, calling out to me as I entered the courtroom or saying good-bye as I left as though we were old friends. Petitioner’s memory appeared to be much worse than it had been when he testified two years earlier. His tone of voice was somehow affected or different, and he had an air of distraction about him as though he did not know what was going on.
In support of his Motion, petitioner produced Dr. Rita R. Kammiel, M.D., a board-certified psychiatrist who is in private practice, and is an attending psychiatrist for the Atlantic City Medical Center, and a consulting psychiatrist for Betty Bacharach Rehabilitation Hospital. Dr. Kammiel confirmed that she had treated petitioner continuously from September 2000 until November 2002. She noted that his history revealed a head trauma at work, and that the symptoms which began occurring after the head trauma included confusion along with a definite change in personality “as reported by the patient and the family.” She diagnosed petitioner with a psychotic disorder, and a post-concussion syndrome. In the course of her treatment, she noted impairments in areas of concentration, short-term memory, problem solving, abstract thinking and making sense out of the environment. She found that his mood was moderately depressed, and acknowledged that he rocked in a chair constantly while talking with her. She felt that he had improved during her treatment on the medication which she had prescribed. She indicated that there were two components to his symptoms. One was cognitive deficits which she acknowledged does not significantly improve, once it develops, more than a year after trauma. The other components are psychiatric symptoms which include insomnia, anxiety, depression, and apathy. These symptoms often respond to psychiatric medications which are not curative, but which will get the psychiatric condition under control and help the patient to feel and function better. She recommended neuropsychological testing in order to determine the extent of petitioner’s cognitive deficit.
After seeing the results of Dr. Chelder’s neuropsychological evaluation, she felt that the testing did show cognitive deficits in the petitioner. However, she acknowledged that this was not an easy case. At one point she stated: “. . . usually patients with head traumas, especially mild head trauma, present with a diagnosis dilemma because they have symptoms that are not explained by tests and MRI and CAT scan and we – the possibility of people making it up, of course, becomes one of the differential diagnoses. We all think of that.”
Dr. Kammiel acknowledged that petitioner had a mild head trauma, but she believes his complaints and therefore concluded that he has a legitimate psychiatric problem.
At another point, Dr. Kammiel was asked whether any red flags were raised regarding petitioner’s honesty when she conducted the mini-tests to test his concentration or ability to recall. She stated: “I can’t think of anything in particular, but I can just tell you that the question of the patient making symptoms up is always on my mind when I see a patient who is dealing in litigation and money is involved. I would be naïve if I don’t think of that.”
Dr. Kammiel concluded that petitioner was in need of additional psychiatric treatment, and she believed that it was causally related to his work injury of June 1, 2000 because he did not have any psychiatric problems before that injury. She felt there were definite and clear changes in his behavior, his personality, his level of function, his anxiety level and this was the only diagnosis which she could come up with. She acknowledged that other doctors had seen him and given him other diagnoses, but she disagreed with those doctors. She also acknowledged that all of the information which she obtained from the petitioner was subjective, and that it was provided to her by the petitioner and his wife.
Respondent produced two witnesses, Dr. Walden M. Holl, Jr., M.D. and Dr. Mark J. Chelder. Dr. Holl is a board-certified psychiatrist who is a Clinical Assistant Professor of Psychiatry at the University of Pennsylvania. He is also a Supervising Training Analyst with the Psychoanalytic Center of Philadelphia. Dr. Holl evaluated petitioner on three occasions, January 15, 2001, June 10, 2001 and January 16, 2004. At the time of his first evaluation, Dr. Holl performed a Mental Status Exam and found that petitioner had inconsistent problems with memory for both recent and remote events. He found that petitioner displayed no variation of emotion, but noted that his thought processes were scattered, vague and difficult to follow. He found that petitioner exhibited mild paranoid ideation, and was preoccupied and may have been hallucinating. He noted that petitioner believed that there was a bug coming out of his head. He also found the petitioner’s judgment was impaired. He concluded that petitioner presented a diagnostic challenge in that his history and clinical presentation were consistent with either an unusual type of head injury in which there had been damage to one or both temporal lobes of his brain, or that petitioner was suffering from schizophrenia, paranoid type. He concluded “Often with the passage of time the clinical picture becomes clear and the diagnosis more certain. I recommend that Mr. Mucciolo continue to receive psychiatric treatment. . . . I recommend that Mr. Mucciolo be evaluated again in approximately four to six months.”
Dr. Holl did evaluate petitioner again on June 10, 2001 and noted a marked improvement in his condition. He found no signs of depression, that his ability to function at work had improved, and concluded that the clinical signs and symptoms which he had seen in his first evaluation were more compatible with a post-concussion syndrome then with a diagnosis of schizophrenia. He again recommended that petitioner continue to receive psychiatric treatment, concluding that it was likely that his condition will continue to improve.
At the time of his third exam on December 23, 2003, Dr. Holl noted that petitioner’s condition had deteriorated. In the history which he provided, petitioner was uncertain of his age stating that he was “48 or 50” years old. Dr. Holl noted that sometime after the previous evaluation, petitioner had stopped working, telling Dr. Holl that he had stopped working because “I forget stuff. I stay in the house a lot so I don’t get arrested.” This appears to have been an untrue statement since petitioner was terminated for allegedly taking money from slot machines.
Dr. Holl now noted that petitioner was disheveled in appearance, quite preoccupied and may have been hallucinating. He found that his thought processes were scattered, vague and mildly paranoid. He had difficulty in presenting his history in a logical and coherent fashion. The dates and sequence of events provided by petitioner appeared to be incomplete and may have been inaccurate. He again noted that petitioner exhibited inconsistent problems with memory for recent and remote events. He found no evidence of depression, but felt that petitioner’s judgment was mildly impaired.
Dr. Holl concluded that on the previous evaluation, he had diagnosed an improving post-concussion syndrome because of improvement in Mr. Mucciolo’s condition. However, on the basis of his most recent exam, he concluded that petitioner was suffering from schizophrenia. His conclusion was based upon the fact that if petitioner had a post-concussion syndrome, his symptoms would not wax and wane but would remain stable or improve. As he stated it: “People with post-concussion syndromes do not become worse after an initial period of stabilization . . . . Schizophrenia, however, is an illness which frequently waxes and wanes in intensity.” Dr. Holl concluded that while petitioner was in need of additional psychiatric treatment, there was no evidence that his current psychiatric disability was attributable to the accident of June 1, 2000, so that his need for treatment was not causally related to that accident.
Respondent also produced the neuropsychologist who performed neuropsychological testing which I had previously ordered, Dr. Mark J. Chelder, Ph.D. Dr. Chelder is a certified school psychologist, a clinical neuropsychologist, and a Diplomate of the American Board of Professional Disability Consultants. He serves as the Brain Injury Program Coordinator of Neuropsychology Services at Betty Bacharach Institute for Rehabilitation and is responsible for the clinical and administrative management of brain injury rehabilitation programs.
Dr. Chelder had an initial clinical interview with petitioner on June 27, 2002, and thereafter evaluated petitioner neuropsychologically on August 5, 2002 and August 15, 2002. In the clinical interview, Dr. Chelder noted that petitioner was alert, but poorly oriented to date and personal information. He was unable to provide the spelling of his last name, where he was born, or his educational history. He noted that petitioner was an extremely poor historian, and tended to rock in his chair during the interview. Dr. Chelder administered a number of tests which are set forth in his report (R-10) and referred to in detail in his testimony. Among the procedures which he administered was a malingering screening test. That test suggested that petitioner’s neuropsychological evaluation should be interpreted with extreme caution. On a test of memory malingering, petitioner performed extremely poorly. His performance on a measure of psychiatric malingering indicated that several of the primary scales were elevated into the probable range. Dr. Chelder was of the opinion that “These results strongly suggested that Mr. Mucciolo did not present himself in an honest fashion.” Dr. Chelder noted that petitioner’s performance on other measures of neuropsychological functioning fell overwhelmingly into the impaired range. His performance on a test of receptive vocabulary fell at the profoundly impaired range, equivalent to a five-year-old child. Many of the other tests given were also in the impaired range. Dr. Chelder concluded as follows:
“These present neuropsychological test results suggested that Mr. Mucciolo performed in the impaired range across all cognitive domains assessed through his evaluation. The level and pattern of his neuropsychological performance was inconsistent with the mechanism of his injury, which would have resulted in a mild head trauma at worst. The diffuse pattern of these deficits and the extreme level of severity call into question the veracity of Mr. Mucciolo’s presentation. His disorientation, confusion, and inability to provide central personal details are also substantially inconsistent with the commonly accepted presentation of a mild head trauma. In addition, results of malingering screening also suggested that he may have been feigning or exaggerating his condition.”
The final exhibit presented by respondent was an audiotape of a Superior Court hearing conducted before Hon. Richard Geiger, J.S.C. on June 3, 2004 in Cumberland County. In that hearing, respondent represented himself on a charge of domestic violence, filed against him by his brother, John Mucciolo who alleged that petitioner had threatened to kill him. Listening to petitioner testify in that hearing, I noted that he illustrated none of the confusion, memory loss or lack of concentration which were portrayed in my courtroom, or which were exhibited to Dr. Chelder. Petitioner made specific references to dates and times when he went on vacation with his brother and other members of his family. He knew exactly where he lived, and was frankly lucid and intelligent in his responses to Judge Geiger’s questions. The testimony before Judge Geiger occurred on June 3, 2004, less than four months after petitioner testified before me on February 10, 2004. It is noteworthy that Judge Geiger found petitioner to be responsive to all of his questions, and made specific findings that petitioner understood the proceedings and was articulate in his responses.
Taking into consideration the findings made by Dr. Chelder in the neuropsychological testing recommended by Dr. Kammiel, and hearing the sudden improvement in petitioner’s memory and concentration as demonstrated on the audiotape before Judge Geiger, I conclude that petitioner exaggerated his complaints and disabilities in his testimony before me in January and February of 2004. What I perceived as the “ring of truth” in petitioner’s testimony in 2002 now appears to ring hollow. In light of the testing performed by Dr. Chelder, and petitioner’s performance before Judge Geiger on June 3, 2004, I question the extent of petitioner’s memory loss, his lack of concentration and the other psychological restrictions about which he testified.
Considering the findings made by Dr. Holl over the three evaluations which he conducted, I find that it is more likely than not that petitioner is suffering from schizophrenia or some other psychiatric condition unrelated to his work accident of June 1, 2000. I further conclude that it is more likely than not that if petitioner did in fact have a post-concussion syndrome as diagnosed by both Dr. Kammiel and Dr. Holl, that that condition improved as a result of the psychiatric treatment provided by Dr. Kammiel over a period in excess of two years. I accept Dr. Holl’s opinion and conclusions regarding improvement as set forth in his report of June 10, 2001.
I further accept Dr. Holl’s opinion that petitioner suffers from schizophrenia, an illness which waxes and wanes in intensity. I note that petitioner has a cousin, Frankie, who has lived with him for over 20 years, and who suffers from schizophrenia. Petitioner has therefore had a substantial opportunity to observe the symptoms of his cousin’s psychiatric condition, and may well have used his relative as a model in his interactions with the psychiatrists in this case.
Finally, in light of the testing conducted by Dr. Chelder and the conclusions of Dr. Holl, I reject Dr. Kammiel’s opinion that petitioner’s continuing need for psychiatric treatment is causally related to his work accident of June 1, 2000. Dr. Kammiel has acknowledged that her opinions were based upon the symptoms presented to her by the petitioner and the information provided by petitioner’s wife. I conclude that it is more likely than not that the symptoms and information presented to Dr. Kammiel by petitioner and his wife were inaccurate, thereby leading her to an inaccurate diagnosis and an inaccurate opinion regarding petitioner’s need for treatment.
Finally, I conclude that if petitioner is in need of additional psychiatric treatment, as suggested by all three of the expert witnesses, that continuing need is unrelated to the work accident of June 1, 2000.
I request respondent’s attorney to submit an Order consistent with this decision. I will allow a stenographic fee to State Shorthand Reporting Service in the amount of $750.00.
Cosmo A. Giovinazzi, III
Judge of Compensation
September 28, 2004