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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
med his stretching program and noted muscle spasm. (Id. at 53.) Dr. Dewey at that time reiterated his recommendation for stretching. (Id.)
While treating the claimant, Dr. Dewey ordered another EMG, which was done by Dr. Cooney. Dr. Dewey wrote that the test, which was done sometime in 1995, "failed to confirm evidence of denervation, but was suggestive of submaximal effort." (Id. at 51, emphasis added.)
As with Dr. Weinert, claimant did not like the advice given him by Dr. Dewey and would not go back to him. (See Ex. 15 at 122 wherein Dr. Baggenstos noted that claimant "does not want to see Dr. Dewey.")
Claimant was then examined by Dr. Richard Nelson on October 3, 1995. (Ex. 11.) Claimant complained of low back and neck pain. Dr. Nelson diagnosed back sprain and " econdary myofascial pain dysfunction" but wanted to rule out "discal pathology," nerve root impingement and herniated disc. (Id. at 79.) Claimant apparently did not return to Dr. Nelson for follow-up.
Then, nineteen and a half months later, claimant returned to Dr. Sublette. Dr. Sublette saw him on May 24, 1996 and on June 6, 1996, performed yet another EMG, the third for claimant. On May 24th the claimant was complaining of "pain in the right medial thigh radiating into the back of the right knee." He noted that claimant was "not doing any exercises." (Ex. 13 at 91, emphasis added.) The EMG was read by Dr. Sublette as indicating "continued presence of peripheral neuropathy" and "renervation(2)." (Id. at 93.) Dr. Hunter in a later office note characterized the "peripheral neuropathy" finding by Dr. Sublette as "almost randomly thrown out" . . . without "being expanded upon." (Ex. 16 at 124, office note of June 13, 1997.) The peripheral neuropathy diagnosis was not supported by a later EMG. (Tr. at 8.) In any event, the condition "is an inherent nerve disease not related to back injury ." (Id., emphasis added.)
Claimant was then referred by his attorney to Dr. Pius Baggenstos, a neurosurgeon practicing in Butte. (Ex. 15 at 119.) Dr. Baggenstos saw claimant on October 3, 1996 and November 27, 1996. Claimant's complaints were of "low back pain and pain radiating down into his right buttock area and the medial aspect of his right thigh with tingling sensation and numbness." (Id. at 119.) Dr. Baggenstos reviewed the 1994 and 1996 MRIs and interpreted them as showing a L4-5 herniated disc with compression of the L4 nerve root. Nonetheless, he was "reluctant to recommend surgical intervention" in light of the long duration of claimant's pain. (Id. at 121.) He recommended epidural blocks (id), which were apparently done as claimant later reported he did not get relief from them (Ex. 16 at 126). Dr. Baggenstos ruled out claimant returning to medium or heavy work (Ex. 15 at 121) but did not rule out claimant working in a light or sedentary capacity. There is no record of claimant returning to Dr. Baggenstos after November 26, 1996.
Claimant next saw Dr. Dewey on January 22, 1997, for an "independent medical examination." (Ex. 8 at 51.) It is not clear who requested the examination.
Dr. Dewey reported claimant's complaints as follows:
He has recurrence of all of his pain, primarily in the back, buttock, medial thigh to the knee and sometimes in the foot. This is all on the right side. The patient has a very poor description of the pain and its location. "I guess it goes down to the front of the knee." He has stopped all exercising. He takes medicines, I am not sure exactly which. He could not describe them. He had epidural steroid injections which made him worse not better. They caused his back to "lock." He is taking a "pain kill" which he cannot i
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