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STATE OF VERMONT

DEPARTMENT OF LABOR

Sue Ann Goodrich Opinion No. 06-16WC

1. By: Jane Woodruff, Esq.

Administrative Law Judge

Fletcher Allen Health Care

For: Anne M. Noonan

Commissioner

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

APPEARANCES:

Frank Talbott, Esq., for Claimant

Jennifer Moore, Esq., for Defendant

ISSUES PRESENTED:

1. Do the terms of 21 V.S.A. §655 apply to independent neuropsychological

examinations?

2. Does Claimant’s right to make a video recording of Defendant’s

independent neuropsychological examination impermissibly deny

Defendant’s right to an examination?

3. 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?

4. If Claimant failed to give proper notice, should she be held financially

responsible for the charges Defendant incurred as a consequence?

5. Should Claimant’s right to prosecute her claim be suspended on the

grounds that she has refused to attend a properly noticed independent

medical examination?

EXHIBITS:

Claimant’s Exhibit 1: Federal Rule of Civil Procedure 6

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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,

2015

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, https://abnboard.

com/?s=ABN+White+paper

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

2012

Defendant’s Exhibit H: Legal policies regarding the reproduction and

dissemination of Pearson Test Materials, January 1, 2014

FACTUAL BACKGROUND:

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.

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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.

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DISCUSSION:

Application of 21 V.S.A. §655 to Independent Neuropsychological Examinations

1. 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.

2. 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.

3. 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.

4. 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.” https://www.merriamwebster.

com/dictionary/ neuropsychology. “Medical” is defined as “of or

relating to the treatment of diseases and injuries: of or relating to

medicine.” https://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.

5. 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.

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Claimant’s Right to Make Video Recording versus Employer’s Right to

Independent Examination

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

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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.

11. 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.

12. 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

neuropsychologist.

13. 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

14. 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

medical provider.

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15. 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.

16. 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.

17. 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.

18. 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.

19. 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

20. 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.

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ORDER:

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

Commissioner

Appeal:

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.