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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
capacities evaluation was done in anticipation of enrolling him in the program. The mini-FCE results are noteworthy, and is one of many factors supporting my own conclusions which follow. The mini-FCE was "invalid." (Id. at 104.) Claimant's efforts were rated as "submaximal." (Id.) Dr. Weinert commented, "Various parts of the minifunctional capacity evaluation demonstrates nonphysiologic or functional weakness including the hand grip strength testing." (Id., emphasis added.) His performance was below the first percentile "in all categories including leg lifts, shoulder lifts, overhead lifts, carries, push, and pull, " (id.) this for a fellow who is six feet four inches tall and weighs over 200 pounds.
Dr. Weinert was obviously displeased with claimant's efforts and gave him two options: enroll in the work hardening program on a trial basis or be rated at maximum medical improvement (MMI). (Id. at 104.) Claimant agreed to the work hardening program. He lasted one day. (Id. at 102.) Despite being asked to lift only up to eight pounds,
Brad did not complete his full circuit and complained of severe diffuse pain. He did not attend the second day of work hardening and has not been back since. Brad relates that he could not do the work hardening because he was unable to sleep the day after. He felt that the program was too difficult. (Id.)
Dr. Weinert then found claimant at MMI and, using his best medical judgment in light of the invalid mini-FCE, determined that claimant was capable of performing light-duty work and released him to do so, noting that he had the potential to increase beyond light duty. (Id. at 103.) That was the last time claimant saw Dr. Weinert.
Claimant was then referred by his attorney to Dr. Richard Dewey, a neurosurgeon in Missoula. (Ex. 8 at 46.) Dr. Dewey examined claimant on March 28, 1995, noted severe muscle spasm in the low back, and wondered whether he might have neurologic compromise." (Id. at 47.) He gave claimant "three simple stretches" to limber up his back and noted , "An aggressive stretching program is essential." (Id. at 47-48.)
Claimant returned to Dr. Dewey two months later on May 25, 1995. The doctor noted "remarkable improvement in the limberness in his spine and has gotten rid of a significant amount of back pain, buttock pain and upper thigh pain . . . . "(1) (Ex. 8 at 49.)
The improvement was short-lived. On August 9, 1995, when Dr. Dewey again saw claimant he again reported significant pain. (Id. at 50.) Dr. Dewey's comments at that time noted claimant's non-compliance with the stretching prescription and his doubts as to the degree and nature of his pain. Dr. Dewey wrote:
Unfortunately, he has been noncompliant in his exercise program. . . o findings other than restricted ROM. . . . Pain is in the back of his thigh now, not the anterior thigh. I question whether or not that his pain is significant in that he is inconsistent in his description from times past. He certainly has no evidence of an L4 radiculopathy. His pain is all now posterior. It goes from the leg to the buttock to the neck. (Id., emphasis added.)
Dr. Dewey declared claimant at MMI and went on to say:
Will get better only in that he spends time stretching. . . . I told Mr. Boster that it was time for him to make some moves. . . . I see no reason to continue benefits from someone who is not assisting his own rehabilitation. . . . I question Mr. Boster's motivation. His history is inconsistent and his compliance with an exercise program, poor. (Id., emphasis added.)
When seen by Dr. Dewey one last time a year and a half later, on January 22, 1997, claimant had not resu
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