STATE OF VERMONT
DEPARTMENT OF LABOR
Sue Ann Goodrich Opinion No. 06-16WC
- By: Jane Woodruff, Esq.
Administrative Law Judge
Fletcher Allen Health Care
For: Anne M. Noonan
State File No. DD-60132
RULING ON DEFENDANT’S MOTION TO ENFORCE CLAIMANT’S
STATUTORY OBLIGATION TO SUBMIT TO NEUROLOGICAL
TESTING AND, IN THE ALTERNATIVE, MOTION IN LIMINE
Frank Talbott, Esq., for Claimant
Jennifer Moore, Esq., for Defendant
- Do the terms of 21 V.S.A. §655 apply to independent neuropsychological
- Does Claimant’s right to make a video recording of Defendant’s
independent neuropsychological examination impermissibly deny
Defendant’s right to an examination?
- Did Claimant give proper notice of her intent to make a video recording of
Defendant’s independent neuropsychological examination under Workers’
Compensation Rule 6.1410?
- If Claimant failed to give proper notice, should she be held financially
responsible for the charges Defendant incurred as a consequence?
- Should Claimant’s right to prosecute her claim be suspended on the
grounds that she has refused to attend a properly noticed independent
Claimant’s Exhibit 1: Federal Rule of Civil Procedure 6
Claimant’s Exhibit 2: American Psychological Association, Statement on Third
Party Observers in Psychological Testing and Assessment:
A Framework for Decision Making, 2007
Claimant’s Exhibit 3: Zabkowicz v. The West Bend Co., et al., 585 F. Supp. 635
(E.D. Wis. 1984)
Defendant’s Exhibit A: Letter from Attorney Moore to Claimant, December 11,
Defendant’s Exhibit B: Affidavit of Sarah Spicer, January 26, 2016
Defendant’s Exhibit C: Emails between Attorney Talbott and Attorney Moore,
January 4, 2016
Defendant’s Exhibit D: Dr. Postal’s fee schedule
Defendant’s Exhibit E: Lewandowski, et al., Policy Statement of the American
Board of Professional Neuropsychology regarding third
party observation and the recording of psychological test
administration in neurological evaluations, http://abnboard.
Defendant’s Exhibit F: Policy Statement on the Presence of Third Party Observers
in Neuropsychological Assessments, The Clinical
Neuropsychologist, 2001, Vol. 15 No. 4, pp. 433-439
Defendant’s Exhibit G: Affidavit of thirty-three Illinois psychologists opposed to
the presence of third party observers during
neuropsychological and psychological assessments, June
Defendant’s Exhibit H: Legal policies regarding the reproduction and
dissemination of Pearson Test Materials, January 1, 2014
On February 12, 2012, Claimant sustained a low back injury while lifting a heavy trash
bag in the course of her employment for Defendant. Defendant accepted the injury as
compensable and paid benefits accordingly. On December 10, 2014 Claimant filed a
Notice and Application for Hearing (Form 6), in which she asserted a claim for
permanent total disability benefits. Specifically, she claims that she is unable to return to
gainful employment because her learning disability prevents her from learning a new
trade that does not exceed her work capacity.
On December 11, 2015, Defendant provided notice to Claimant and her counsel,
Attorney Talbott, that it had scheduled her to attend a neuropsychological examination on
Thursday, January 7, 2016 at 9:00 AM with Dr. Karen Postal, Ph.D. On Monday,
January 4, 2016 Sarah Spicer, a paralegal employed by Attorney Moore (Defendant’s
counsel), telephoned Attorney Talbott between 3:01 PM and 3:10 PM to confirm that
Claimant would be attending the examination as scheduled. Attorney Talbott indicated
that Claimant would attend. In addition, he requested that Ms. Spicer inform Attorney
Moore that Claimant intended to exercise her right, under 21 V.S.A. §655, to make a
video recording of the examination.
Shortly thereafter, at 3:39 PM Attorney Moore emailed Attorney Talbott to advise that
Dr. Postal would allow Claimant to make a video recording of the interview portion of
the examination, but objected to any video record of the testing itself.
Attorney Talbott responded to Attorney Moore’s email at 4:34 PM. In it, he asserted that
Claimant had the right to videotape the entire evaluation. At 4:38 PM Attorney Moore
replied, and again asserted her position that Claimant would not be permitted to make a
video recording of the actual testing portion of the examination. More specifically, she
advised that Dr. Postal was unwilling to conduct the examination if it was to be
videotaped, due to her concern that a third party observer would render the test results
unreliable. Thus, Attorney Moore asserted, if Claimant insisted on doing so the ultimate
result would be to deprive Defendant of its right to the evaluation altogether. In addition,
Attorney Moore questioned whether Attorney Talbott had given the requisite three
business days’ notice of Claimant’s intent to videotape the examination, as mandated by
Workers’ Compensation Rule 6.1410.
On January 5, 2016 Attorney Moore sought guidance from the administrative law judge
on the issues she had raised in the previous day’s email to Attorney Talbott. As to the
question whether Claimant should be allowed to videotape the testing portion of Dr.
Postal’s examination, Attorney Moore asserted that doing so would be improper because
(a) the presence of a third party observer (in this case, the videographer) would invalidate
the test results; and (b) videotaping would compromise the proprietary nature of the
written test materials.
At a telephone status conference that same afternoon, the administrative law judge
preliminarily ruled that the statute granted Claimant an absolute right to make a video
recording of the examination, and that Dr. Postal’s concerns could be adequately
addressed by crafting an order to protect the proprietary nature of the test materials. She
also ruled preliminarily that Claimant had in fact given adequate notice of her intent to
videotape. She then allowed the parties additional time in which to more fully brief their
respective positions on these issues.
As a consequence of the administrative law judge’s preliminary rulings, Defendant
canceled Dr. Postal’s scheduled examination. However, because it failed to do so at least
48 hours beforehand, Dr. Postal imposed a late cancellation charge of $1,600.00, in
accordance with her established fee schedule. Now, in addition to a final ruling on the
issues discussed above, Defendant also requests an order that Claimant be held
responsible for the cancellation charge, on the grounds that but for her improper request
to videotape the examination it would have occurred as scheduled.
Application of 21 V.S.A. §655 to Independent Neuropsychological Examinations
- I consider first Defendant’s argument that the statute pertaining to independent
medical examinations, 21 V.S.A. §655, does not apply to neuropsychological
examinations. The specific statutory language reads:
After an injury and during the period of disability, if so requested
by his or her employer, . . . the employee shall submit to
examination . . . by a duly licensed physician or surgeon
designated and paid by the employer.
- Workers’ Compensation Rule 6.0000 refers to the examinations that §655
mandates by their more common descriptor, “independent medical examinations.”
Defendant asserts that a neuropsychological examination is not a “medical”
examination, and therefore that the rights granted Claimant by both statute and
rule with respect to videotaping examinations do not apply here. Unlike a
neuropsychological examination, it argues, a “medical” examination does not
involve “testing;” thus, Claimant’s right to make a video recording should not
extend to the actual test portion of Dr. Postal’s exam.
- The short answer to Defendant’s argument is that if a neuropsychological
examination is not covered by §655, then Defendant has no right to require
Claimant to submit to it in the first instance.
- Beyond that, I reject Defendant’s premise that a neuropsychological examination
is not properly characterized as a “medical” procedure. “Neuropsychology” is
defined as “a science concerned with the integration of psychological
observations on behavior and the mind with neurological observations on
the brain and nervous system.” http://www.merriamwebster.
com/dictionary/ neuropsychology. “Medical” is defined as “of or
relating to the treatment of diseases and injuries: of or relating to
medicine.” http://www.merriam-webster.com/dictionary/medical. The
brain and the nervous system are organs of the human body and are
treated for diseases and injuries. Considering these definitions together, I
conclude that it is reasonable to characterize neuropsychology as a wellrecognized
subset of medicine.
- The employer’s statutory right to independent medical examinations has
long been interpreted to include both psychological and
neuropsychological evaluations. I see no basis for interpreting the
statutory language as narrowly as Defendant suggests. I conclude that the
parties’ rights and responsibilities with respect to Dr. Postal’s evaluation
are squarely covered by §655 and Rule 6.0000.
Claimant’s Right to Make Video Recording versus Employer’s Right to
- Workers’ compensation-related independent medical examinations are governed
by statute, 21 V.S.A. §655. Particularly with respect to video- and audiotaping,
the statute safeguards both parties’ rights as follows:
The employee may make a video or audio recording of any
examination performed by the insurer’s physician or surgeon or
have a licensed health care provider designated and paid by the
employee present at the examination. The employer may make an
audio recording of the examination. . . . If an employee refuses to
submit to or in any way obstructs the examination, the employee’s
right to prosecute any proceeding under the provisions of this
chapter shall be suspended until the refusal or obstruction ceases,
and compensation shall not be payable for the period during which
the refusal or obstruction continues.
- Defendant contends that, under the circumstances of this case, Claimant’s
insistence on videotaping Dr. Postal’s neuropsychological examination is
tantamount to denying its right to conduct the examination itself, in violation of
the language of §655 quoted in Paragraph 1 above. It argues that ethical
considerations preclude Dr. Postal from allowing a third party observer to be
present while the necessary tests are administered. As support, Defendant cites to
two journal articles purporting to explain the positions of the American Board of
Professional Neuropsychology (the “Board”) and the American Academy of
Clinical Neuropsychology (the “Academy”) on this issue, see Defendant’s
Exhibits E and F.
- Both the Board and the Academy state the same reasons for their policies: (1)
because test results are measured against normalized standards that do not account
for third party observers, validating tests conducted with an observer present is
impossible; and (2) because testing materials are proprietary in nature, the
presence of a third party observer will compromise their integrity and jeopardize
their future use.
- As Claimant correctly observes, see Claimant’s Exhibit 2, the American
Psychological Association (the “Association”) has advocated an alternative
position, one that recognizes the necessity of third party observers in certain
situations, for example, where testing occurs in the context of criminal
proceedings against the examinee. The Association has provided a framework
under which an examination can proceed without compromising either test
validity or security.
- As to test validity, the concern raised by both the Board and the Academy is the
risk that a third party observer will distort the testing environment, distract the
examinee and damage the examiner’s ability to establish rapport, all of which will
adversely affect the examinee’s performance and skew test results. To minimize
these risks, the Association has suggested various solutions, such as positioning
the observer behind the examinee (with strict instructions to remain silent
throughout) or recording the examination through a one-way mirror. Though
perhaps not perfect, these steps represent an effective compromise between the
examinee’s rights and the examiner’s need for valid test results.
- In this case, both Claimant’s right to have a third party videographer present at
Dr. Postal’s examination and Defendant’s right to the examination itself derive
from the same statute, 21 V.S.A. §655. As to the right to make a video recording,
the statute grants permission for “any examination” to be videotaped. I can accept
the need to impose whatever safeguards are reasonably necessary to address an
examiner’s valid concerns. However, having in mind the remedial purposes of
the workers’ compensation act, Grather v. Gables Inn, Ltd., 170 Vt. 377, 382
(2000), I cannot countenance restrictions that are unduly limiting.
- I conclude here that Claimant has the right to make a video recording of Dr.
Postal’s neuropsychological examination, including not only the interview portion
of the exam but also the actual testing portion. Among the safeguards that are
reasonable to impose are those discussed in Paragraph 4 above. In addition, in
order to protect the proprietary nature of the test materials, I conclude that it is
reasonable to prohibit Claimant from disclosing the video recording to anyone
(including her attorney) other than directly to another qualified expert
- In reaching this conclusion and imposing these safeguards, I acknowledge the
very real possibility that Dr. Postal will refuse to conduct the examination. That
is her right. I am reasonably confident that if this occurs, Defendant will be able
to identify another equally competent neuropsychologist who is willing to
proceed. If travel beyond the statutory two-hour driving limitation becomes
necessary, I expect it will be within the proper exercise of the discretion granted
me by §655 to allow the examination to take place nevertheless.
Notice of Intent to Make Video Recording
- Workers’ Compensation Rule 6.1400 reiterates the Claimant’s statutory right to
videotape an independent medical examination, see Paragraph 6 supra, but adds a
notice requirement, as follows:
6.1410 At least three business days prior to the scheduled
examination date, the injured worker shall give notice of his or her
intention to make a video or audio recording of the examination to
the employer or insurance carrier, who shall in turn notify the
- Defendant argues that Claimant did not comply with the requirements of Rule
6.1410 because she did not give three full business days’ notice of her intent to
video record the examination. Claimant contends that she complied with the plain
meaning of the Rule in providing her notice.
- The Vermont Rules of Civil Procedure apply in workers’ compensation
proceedings to the extent that they do not defeat the informal nature of the
hearings. 21 V.S.A. §§602, 604; Workers’ Compensation Rule 17.1100.
Specifically with respect to determining timeliness, Workers’ Compensation Rule
3.3000 incorporates the provisions of Vermont Rule of Civil Procedure 6(a). That
rule states, in pertinent part, that when computing time, “the day of the act, event,
or default from which the designated period of time begins to run shall not be
included.” The last day of the period is included, however, unless it falls on a
weekend or holiday.
- There is an important distinction between the time computations encompassed by
the Rules of Civil Procedure and the one at issue here. Counting the last day of a
period as a full day of notice makes sense when the action to be taken involves
serving documents on a party or filing papers with the court, because acts such as
this are not scheduled to occur at any particular hour of the day. However, when
the notice concerns a scheduled medical appointment, time of day matters. And
with its specific reference to “business days,” Workers’ Compensation Rule
6.1410 reflects that.
- In the instant case, the three-day notice period began to run on Tuesday, January
5, 2016, the day after Attorney Talbott first gave notice of Claimant’s intent to
videotape Dr. Postal’s exam. Wednesday, January 6th was the second day.
Thursday, January 7th – the day of Dr. Postal’s exam – would have been the third
day. Had the exam been scheduled for later in the afternoon, perhaps it would
have been fair to count it as a notice day. As it was, the exam was scheduled for
9:00 AM, the very start of the business day, however. Under that circumstance, to
count January 7th as the third day would be manifestly unfair.
- I conclude that Claimant failed to give adequate notice of her intent to videotape
Dr. Postal’s independent medical examination, as required by Workers’
Compensation Rule 6.1410. Because her failure to do so led directly to the
appointment’s late cancellation, I further conclude that she is liable for the
$1,600.00 cancellation fee that Dr. Postal imposed.
Defendant’s Motion in Limine in the Alternative
- I reject Defendant’s contention that Claimant should be sanctioned under §655 for
“refusing to attend” Dr. Postal’s examination, however. Although she failed to
give adequate notice of her intention to videotape the exam, I do not interpret her
actions as amounting to a refusal to attend. For that reason, I conclude that it
would be improper to allow Defendant to suspend benefits on those grounds.
Based on the foregoing, Defendant’s Motion to Enforce Claimant’s Statutory Obligation
to Submit to Neuropsychological Testing and Motion in Limine in the Alternative are
hereby DENIED. Defendant’s request for reimbursement is hereby GRANTED.
DATED at Montpelier, Vermont this _____ day of ______________, 2016.
Anne M. Noonan
Within 30 days after copies of this opinion have been mailed, either party may appeal
questions of fact or mixed questions of law and fact to a superior court or questions of
law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.