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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
s pain. His own doctors have declared that his subjective complaints do not correlate with his objective findings and characterized them as out of proportion with the objective findings.
Claimant's family was paraded before the Court to testify how bad off the claimant is, but I am unpersuaded by their testimony. Perhaps they have been taken in by claimant's claims of pain and disability -- they most certainly appear to be enabling him -- but I am not.
I find that claimant was at MMI when his benefits were cut off in January 2001, and that he has continued to be at MMI. The additional MRI imaging and EMG testing recommended by Dr. Hunter, and actually done, was driven by and responsive to claimant's continued complaints of extreme, disabling pain, which I have found were exaggerated. They produced no new findings. Claimant has been tested ad nauseam. He has had his physicians metaphorically "chasing their own tails." So long as claimant exaggerates his pain it is unlikely further testing is going to produce any helpful information.
As to Dr. Hunter's suggestion of further care by a physiatrist, claimant has rejected a return to Dr. Weinert, has rejected recommendations for further physical therapy, and refuses to do stretching exercises. I am unpersuaded he will suddenly become compliant. As to the pain clinic recommendation, claimant has flatly and unequivocally rejected that option in the past, and I do not believe him when he says that he has had a change of heart. Moreover, I find credible Dr. Cheatle's testimony that claimant is not a candidate for a pain clinic.
For similar reasons, I find that claimant is capable of working at jobs identified as appropriate for him, which are available in significant numbers, and for which he has been medically released. His problem is not that he is unable to work; it is that he is unmotivated and unwilling to work.
As to the request for permanent partial disability benefits, I find initially that he is entitled to a 10% impairment award based on Dr. Gary's impairment rating. (Ex. 22.) In addition, I am persuaded he cannot return to heavy labor since I believe he has "some" pain and also note that he does have disc disease, however, I am not persuaded that he cannot do medium labor. The burden of persuasion is on him and the release to light and sedentary work was a minimum. Since he has made it impossible to accurately evaluate his physical abilities, he has not carried his burden of showing that is all he can do. Finally, he has presented no vocational evidence showing that the jobs he can do post-injury pay less than his time-of-injury job , although I suspect that is the case.
Finally, I consider the request for a penalty and attorney fees. An award of either requires proof that the insurer has acted unreasonably. ยงยง 39-71-611, -612, and -2907, MCA (1993). As a matter of fact, and as illustrated by the foregoing findings of fact, the insurer acted reasonably in terminating claimant's benefits and in resisting his request for reinstatement for total disability benefits. As to my conclusion that claimant is entitled to permanent partial disability benefits, those benefits have never been at the forefront of this case. Claimant has been actively seeking TTD or PTD benefits, not PPD benefits. The PPD benefits request is only a secondary position and one that kicks in only because the claimant's request for total disability benefits is denied. Thus, it can hardly be said that the insurer has unreasonably delayed or failed to pay those benefits even though I find they are due.
CONCLUSIONS OF LAW
This case is governed by the 1993 version of the Montana Workers'
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