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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
specializes in pain management and runs a pain management clinic which Dr. Gary characterized as "the best program to my knowledge in the area." (Ex. 3 - Gary Dep. at 19.) Dr. Cheatle summarized the claimant's complaints as of that date - August 25, 1998:
The patient is not involved in any regular exercise and has adopted a very inactive and sedentary lifestyle.
The patient stated that his pain symptoms tended to be exacerbated by sitting greater than thirty minutes; standing greater than three to five minutes; lifting waist to chest greater than ten to fifteen pounds; repetitive bending/twisting; ambulation of steps descending greater than ascending; changes in the weather and lying supine. The patient reported that his pain was relieved on a temporary basis with lying on his left side, rest in a recliner, and making frequent position changes. (Ex. 20 at 139.)
Claimant told Dr. Cheatle that he did "not perceive himself as every employable due to his perceived level of pain" and was "supine approximately sixty percent of the day." (Id. at 140.)
After reviewing claimant's medical records, interviewing and taking a history from claimant, and administering a test for depression, Dr. Cheatle concluded that claimant was not depressed and was simply "very content with his status quo." (Id. at 142.) He went on to comment:
I suggested that the patient return for evaluations with our staff . . . to assess if he would be a reasonable candidate for pain management services which I highly doubt. The patient was very adamant that nothing will help his condition . . . . I believe the patient is not a good candidate for further attempts at rehabilitation given his lack of goals, his current attitude and paucity of distress. . . . I see no reason why the patient cannot return to gainful employment. (Id.)
Dr. Cheatle later reviewed the videotapes, including a subsequently taken videotape at Pishkin Reservoir which will be discussed below, and testified that the videotapes merely reinforce his opinions. (See also Ex. 21.) He testified that claimant's lack of distress during the activities shown on videotape contrasted to claimant's pain behavior - lots of shifting, frequent alternation of sitting and standing, and facial grimaces - he observed on August 25, 1998, during his evaluation of claimant. Dr. Cheatle further testified that claimant's non-compliance with his physician's recommendations indicate his lack of motivation. He emphasized that claimant's lack of distress over his situation is a "mismatch" to his claimed disability.
Liberty conducted additional video surveillance of claimant in April and May of 1999. Of particular interest is the video of claimant on May 6, 7, and 8, 1999, showing him getting his camper ready and then at Pishkin Reservoir camping with his family. (Ex. 19, Tapes 1 and 2.) On the 6th and 7th, there is limited surveillance showing him cranking a camper leg, walking and bending, and putting things in the camper. There is video of claimant at Pishken from 4:59 pm to 5:33 pm. During that time he stands, walks, picks up a bag of ice, repeatedly squats and bends at the waist, at one point he cranks a jack leg of the trailer while squatting and at another he squats for approximately 3 continuous minutes. The video on May 8th is from 7:38 am to 9:12 am, a period of 1 hour and 34 minutes. (Ex. 19, Tape 2.) During that time claimant is standing, walking, bending over, or squatting for all but approximately 3 minutes, during which he sits. He baits his pole, casts, and goes briefly into and out of the camper a couple of times. I counted him squatting on at least 19 occasions, sometimes remaining on his haunches for
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