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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
ary 19, 2001, when Liberty gave claimant 14-day notice it was terminating his benefits. (Tr. 183.) The benefits were not reinstated following the January 19th notice; seven and a half months later the claimant filed his present petition.
Claimant contends that he is either temporarily totally disabled or permanently totally disabled. In the alternative, he contends that if he is not totally disabled then he is entitled to permanent partial disability benefits, however, he has presented no evidence of wage loss with respect to jobs he might perform.
Claimant has been treated or examined by a number of physicians over the years. His constant complaint in recent years is low-back and right leg pain. He has been released to return to light to medium jobs and jobs have been identified as available and appropriate for him. However, he insists that his pain is too great for him to work. This is a pain case resting entirely on claimant's credibility as to the nature and extent of his pain.
The first medical record is dated October 25, 1994, and is a prescription by Dr. Glen Sublette, a Butte neurologist, for physical therapy. (Ex. 13 at 88.) The prescription states that the therapy is for "L5-S1 disc." (Id.) It is not clear whether Dr. Sublette saw claimant that day. (See id.)
Dr. Sublette did examine claimant on October 26, 1994, and also conducted nerve conduction (EMG) studies. (Ex. 13 at 85-87, 89-90.) At the time of the examination claimant complained of "numbness and tingling in the buttocks and legs, and possibly some weakness in the lower extremities," as well as "radiating discomfort from the lumbar region up into the mid thoracic and cervical regions." (Id. at 85.) The nerve conduction studies "showed a prolongation of the distal motor latencies in both extremities," which Dr. Sublette interpreted as "consistent with a diffuse peripheral neuropathy, but also probably represents S1 radiculopathy." (Id. at 86.) However, the study was "limited because of the patients discomfort." (Id.) Dr. Brooke Hunter, who later treated the claimant characterized Dr. Sublette's study as "technically quite flawed." (Tr. at 7.) In any event, Dr. Sublette opined that claimant "most likely has a L5-S1 disc" and recommended myelography, which the claimant refused at that time. (Ex. 13 at 86.) Claimant was to see Dr. Sublette in 7-10 days for re-evaluation but did not do so, rather his care was then assumed by Dr. Allen Weinert, a physiatrist in Helena.
Dr. Weinert treated claimant from November 10, 1994 to February 6, 1995. (Ex. 14.) Claimant was ultimately unhappy with Dr. Weinert and has stated adamantly that he will not resume treatment with him. (Ex. 16 at 130.)
On November 10, 1994, claimant reported "mid and low back pain which is variable in nature." (Ex. 14 at 114.) He reported increased low back pain when standing and occasional tingling in both feet. (Id.) After examining claimant, Dr. Weinert diagnosed back strain with "no evidence of neurologic compromise such as S1 radiculopathy, however, lumbar disk herniation could have occurred." (Id. at 116). He prescribed physical therapy and an anti-inflammatory and ordered an MRI. (Id.)
On November 30, 1994, Dr. Weinert reported that the MRI identified dessication of the L4-5 disk, which was also centrally bulging but with no herniation. (Id. at 112.) On that date claimant was reporting increased "mid-back pain," headaches and neck pain. Dr. Weinert continued to prescribe physical therapy, along with home exercises. (Id.)
Claimant made only limited progress in physical therapy. (Id. at 106.) Dr. Weinert then recommended work hardening (id.) and a mini-functional
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