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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
. at 26, emphasis added.)
Dr. Hunter did not review the surveillance tapes (tr. 64), but of some significance to my evaluation of those tapes, Dr. Hunter testified that given claimant's complaints he should have difficulty "with stooping and squatting and bending." (Tr. at 62.)
As to claimant's ability to work, Dr. Hunter testified that "I think light and sedentary type of work is doable." (Tr. at 31.)
The only current suggestion for further treatment offered by Dr. Hunter is for claimant to return to a physiatrist or a pain clinic. (Tr. at 65-67.)
Resolution
Claimant has been found at MMI by three physician's who have treated him, by Dr. Allen Weinert back on February 6, 1995 (Ex. 14 at 103); by Dr. Richard Dewey on August 9, 1995 (Ex. 8 at 50); by Dr. Hunter on August 25, 1997 (Ex. 16 at 126); and by Dr. Gary, initially on October 28, 1997,(5) and again on November 20, 2000 (Ex. 22). Drs. Dewey, Gary, and Hunter have indicated that from a medical standpoint the claimant is capable of performing sedentary and light jobs, at minimum, and in late 2000 Dr. Gary approved specific jobs which are available in the Helena and Montana job market.
Claimant's evidence that he should still be deemed temporarily totally disabled is based on Dr. Hunter's recommendations for a further MRI and EMG, which have since been done, and his suggestion that claimant return to treat with a physiatrist (a specialist in physical and rehabilitation medicine) or a pain clinic. At trial claimant indicated that he now is willing to attend a pain clinic.
I am absolutely persuaded that the claimant has exaggerated and continues to exaggerate his pain. I did not find his testimony as to the level of his pain credible. My conclusion is based on my assessment of claimant's credibility at trial, including my personal observation of his pain behavior during trial. Testimony was initially taken of Dr. Hunter at his office. Claimant was present. I noted early on that claimant was constantly changing positions as if uncomfortable or in pain. His "restlessness" continued throughout much of Dr. Hunter's testimony. Yet, when the Court reconvened at the Federal Building and I observed him for several minutes prior to reconvening, he appeared relaxed and comfortable, not changing positions constantly in contrast to his behavior at Dr. Hunter's office. When trial began again, he again engaged in what is best termed as "pain behavior."
Moreover, I have reviewed the surveillance tapes. As did Drs. Headapohl and Cheatle, I found that his actions on those tapes, particularly his moving of the washer and dryer and his activities while fishing at Pishkin Reservoir simply do not square with the level of pain he claims in this case and which he has continuously claimed in his reports to his physicians. His lifting of the washer or dryer and his multiple squats during an hour and a half at Pishkin Reservoir are just too much to ignore. I am unpersuaded by the argument that he was just having "good days." I am persuaded by Dr. Cheatle's testimony that he is unmotivated and simply comfortable with his current lifestyle, I am persuaded he is consciously exaggerating his pain.
Claimant's refusal to comply with recommendations for stretching, his out-of-hand rejection of a pain clinic when initially suggested by Dr. Hunter, his refusal to consider returning to Dr. Weinert or do additional physical therapy, his performance on the mini-FCE, which incredibly placed him in the one percentile on all measures, and his consistent attitude that he cannot work and will not even try, reinforce my conclusion that claimant is consciously exaggerating hi
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