Doctors may have to disclose MMPI tests

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It was error for an administrative law judge to find an applicant for workers compensation guilty of “obstructing” for refusing to submit to an MMPI test unless she could get a copy of it, the Labor and Industry Review Commission held on Oct. 16.

The MMPI (Minnesota Multiphasic Personality Inventory) is a personality test, the raw data of which psychologists only release to other psychologists, on the grounds that, if the testing materials or the questions asked in the testing became available to the general population, it could affect the validity of the test.

Carole Gohl submitted a claim for workers compensation, claiming that she has an occupationally-caused allergy to latex and formaldehyde caused by work as a certified nurse’s assistant.

She received temporary disability compensation for several weeks in 1997 and 1998, and is now claiming permanent total disability from her allergy.

Her employer wanted to have Gohl examined by a medical doctor and a psychologist, and arranged for the examinations. Gohl objected to the psychological exam, but ALJ Edward W. J. Falkner ordered her to attend.

An evaluation was scheduled with Thomas Lynch, Ph.D. Gohl went to Lynch’s office, but refused to complete any forms or give him writings of any sort unless she were immediately provided with a copy of the writing or form.

Dr. Lynch refused to administer psychometric testing under these circumstances, citing the ethical obligations imposed by the American Psychological Association that bar disclosure of the test.

Dr. Lynch informed Gohl that he was willing to provide a complete copy of all test materials to a psychologist of her choice, but Gohl still refused to proceed with the test.

As a result, ALJ Falkner ordered that, if Gohl refused to take the test under the procedures set forth by Dr. Lynch, he would deem that “obstruction” of the independent medical examination (IME) and suspend proceedings.

Upon advice from counsel, Gohl still refused, and ALJ Falkner suspended the matter. Gohl petitioned for review by the LIRC, which set aside the suspension.

Jurisdiction

The Commission first considered whether it had jurisdiction to hear the petition, and concluded that it did.

Section 102.18(3) limits commission review to decisions awarding or denying compensation. The commission acknowledged that ALJ Falkner’s orders only suspended the matter, and that the commission routinely denies jurisdiction in such cases on the theory that the applicant may always refile, and therefore, compensation has not been denied.

Nevertheless, the court concluded it had jurisdiction in this case, reasoning, “the effect of ALJ Falkner’s July 30, 2003 letter goes beyond simply postponing the point at which the applicant’s case can be heard. Wis. Stat. sec. 102.13(1)(c) does not only suspend the applicant’s right to proceed on a claim for benefits while he or she refuses to attend an IME. In addition, the statute provides that — where as here an ALJ orders a worker to attend an IME and the worker refuses — the worker’s right to the weekly indemnity accruing during the period of the refusal is barred.”

The commission found that, because Gohl’s claim is for permanent total disability beginning in February 1999, the effect of the decision is to finally deny her right to compensation for at least some of that period, and therefore t
he commission has jurisdiction.

Definition of “Statement”

After finding that the ALJ could reasonably order psychological testing in this case, the commission turned to whether Gohl was guilty of obstruction by imposing the conditions for testing that she did, and held that she was not.

Wis. Admin. Code DWD 80.24 provides, “When an employee gives a statement signed by him, which in any way concerns his claim, a copy of such statement must be given to the employee. When such statement is taken by a recording device and is not immediately reduced to writing, a copy of the entire statement must be given to the employee or to his attorney within a reasonable time after application for hearing is filed, and the actual recording must be available as an exhibit if formal hearing is held. Failure on the part of the employer or insurance carrier to comply with the above will preclude the use of such statement in any manner in connection with that claim.”

The issue, the commission concluded, is the meaning of the term, “statement” in that provision, and whether Gohl’s answers to the test questions fell within that definition.

To answer that question, the commission turned to an unpublished decision of the Wisconsin Court of Appeals, Premeau v. LIRC, case No. 00-0266 (Wis.Ct.App. Jan. 11, 2001), in which the court used the hearsay definition of “statement” provided in Rule 908.01(1): “A ‘statement’ is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended by the person as an assertion.”

The commission acknowledged that unpublished court of appeals’ decisions have no binding precedent, but adopted the definition anyway, stating, “Nonethe-less, it seems as good a definition as any, and the applicant’s responses to questions on MMPI or similar testing could well be a written assertion that in some way affects her claim.”

The commission acknowledged that DWD 80.24 only contemplates statements that are signed by the employee or taken by recording device, but found this did not change the analysis. The commission concluded, “In any event, regardless of whether the responses to the MMPI or similar testing are ultimately determined to be a ‘statement’ under Wis. Admin. Code sec. DWD 80.24, the applicant had the right under the rule to at least make a demand for copies of statements signed by her. The ALJ erred in ordering her not to make that demand on Dr. Lynch, but instead to undergo the examination ‘without requesting or demanding that a copy of any writing be given to her as a prerequisite thereto…’”

Accordingly, the commission vacated the ALJ’s orders suspending benefits pending an MMPI.

Remand

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The Commission then issued instructions upon remand to the ALJ, stating that the employer is free to request, and the ALJ is free to grant, another order that Gohl undergo the MMPI, “as long as he does not order her not to give up her right to demand copies of statements or other writings.”

The commission assumed that Dr. Lynch would again refuse to provide Gohl with testing materials under these circumstances. If so, the commission said, it expects that Gohl with nevertheless continue with the evaluation in good faith, and that, if she does not, she faces possible suspension of her claim and forfeiture of compensation.

However, the commission added, “On this point, the commission notes that the penalty for failing to provide a copy of a ‘statement’ to an employee under Wis. Admin. Code sec. DWD 80.24 is to exclude the statement; the rule does not permit the worker to refuse to undergo a psychological evaluation ordered by an ALJ on that basis. Simply demanding copies of the material, however, cannot in and of itself be considered ‘obstructing’ the evaluation.”

The commission continued, “The commission does not decide at this point what the effect of Dr. Lynch’s anticipated continued refusal to provide the MMPI or other psychological testing mater
ial will eventually have on the applicant’s claim. Instead, that issue — assuming it arises — should be raised and decided if and when the respondent attempts to use the statements given in the MMPI or other psychological testing ‘in any manner in connection with that claim.’”

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David Ziemer can be reached by email.