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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
100 feet. On soft surfaces he can walk a little farther. All types of twisting, lifting and bending cause increased pain. If he turns sharply and exceeds his limitations, he may get severe pain that lasts for a considerable period of time and as what he states, a feeling of being locked up with inability to move much. He has tried some stretching exercises which he does not think help and in fact at times have made him worse. This is in spite of written reports from Dr. Dewey that stretching helped and when he stopped stretching he was worse. (Ex. 4 at 37, emphasis added.)
Claimant's complaints are set out at length in light of subsequent surreptitious video surveillance.
Dr. Gary discounted Dr. Sublette's suggestion of peripheral neuropathy, noting that subsequent studies did not confirm that diagnosis and that claimant's "symptoms and findings on examination would not clinically support that type of diagnosis." (Id.) He also reviewed the CT scan and myelogram and did "not see any lateral extension to suggest a significant lateral disc herniation." (Id.)
As did Dr. Dewey, Dr. Gary recommended a stretching program for claimant which he opined would relieve claimant's back spasm. (Id. at 36, 39.) However, his recommendation met with resistence:
I discussed with Mr. Boster the possibility of doing some gradual stretching exercises which I believe would help and try a regimen of a loading dose of aspirin daily taking 6-8 aspirins spaced out through the day. He is recalcitrant to any suggestion and simply states this would not work.
He seems to be recalcitrant to any type of suggestion otherwise and, therefore, I don't know what else to offer him. (Id. at 39.)
Concerning work, Dr. Gary commented:
He has been released at times for light duty work on two separate occasions, but never went back to work because he didn't think he could handle that. (Id. at 38.)
Despite claimant's self-assessment, Dr. Gary opined that claimant could perform a light-duty job for his time-of-injury employer. (Id. at 39.)
Another year passed, apparently without medical activity. Then in August 1998, Liberty sent out an investigator to conduct video surveillance of claimant. Surveillance video was taken on August 1, 2, 14, 15, 16, 23, 24, and 25, 1998.
Of significance, the video of August 2nd shows claimant helping with a large boat which is on a boat trailer. Over a period of 35 minutes he cranks the crank on the tongue of the boat to raise or lower it, gets in and out of the boat, stands up and sits down repeatedly while apparently assisting in troubleshooting the inboard motor, bends repeatedly at the waist, squats at least one time, and lifts a child under the armpits into the air (off the ground), extending his arms while the child is in the air to lift the child up and over something before setting the child down. (Ex, 19, Tape 8: 1:04 to 1:39 pm.; Tr. at 168-172.) In height the child appeared to come up to at least claimant's waist. (Ex. 19, Tape 8 at 1:36 pm.)
Also significant is a three minute segment on August 24, 1998, which shows claimant sliding two large appliances - a washer and dryer most likely, but possibly one is a stove - through his front door and onto a porch. (Ex. 19, Tape 11: 9:30-9:33 am.; Tr. at 175-78.) At one point claimant bends over, grabs the bottom of the first appliance, and tilts the appliance back by lifting up the bottom. At another point he reaches over the appliance, grabs the back top of the first appliance, and tilts it forward.
A day after wrestling the appliances, claimant was seen in Missoula by Martin Cheatle, Ph.D. Dr. Cheatle
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