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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
several seconds. On 7 occasions he walks approximately 5 steps down a steep bank to the lake and back up again. At one point he bends over and picks up one of his children, then holds the child in his arms for approximately a minute. There is no obvious limp or difficulty in his moving about, bending over, or squatting.
Dr. Gary was asked to review the video surveillance tapes. He declined to do so but suggested Dr. Dana Headapohl do so. Dr. Headapohl, who specializes in occupational medicine, did so and testified by deposition. She reviewed various medical reports furnished by Dr. Gary and reviewed the videotapes. She was asked specifically about videos 1 and 2. She testified that his activities on the those videos were significantly inconsistent with the difficulties he reported to his physicians. (Headapohl Dep. at 13-14, 24.) In the videotapes she found no indication of any physical problems in the claimant's low back or the right leg. (Id. at 12.) She saw no limp or any difficulty in his walking. (Id.) She testified that in the videos she observed claimant displaying a full range of motion of his back except "the farthest reach of extension, arching back," and saw no observable problems. (Id. at 22.) A later medical record of Dr. Hunter of October 28, 1999, indicated claimant was limping and refused to try straight-leg raising because of fear it would hurt. (Ex. 16 at 128.(3)) Dr. Headapohl testified that squatting simulated straight leg raising. Claimant demonstrated no difficulty repeatedly squatting on May 8th. Dr. Headapohl also noted that patients with significant low-back and leg pain typically have difficulty going down a steep slope. (Headapohl Dep. at 21-22.) She noted no such difficulty in the videos.
After considering the videos, claimant's medical records, and job analyses, Dr. Headapohl opined that there is no "contraindication" for claimant working as a motel desk clerk and an airport pre-board screener. (Id. at 16-17.)
After receiving Dr. Headapohl's and Dr. Cheatle's comments about the videos, Dr. Gary wrote a letter on November 20, 2000, opining that claimant was at MMI and "able to work at a light to medium category position with restricting of lifting to infrequently 25-30 pounds and no more than 10 pounds frequently." He recommended that claimant "be able to move about every 15-20 minutes and not be required to sit for prolonged periods, stand for prolonged periods." (Ex. 22.) He also recommended that claimant not bend or twist other than occasionally, and not drive for long periods of time. (Id.)
At the time of Dr. Gary's letter, claimant had previously been approved by Dr. Dewey for a light-duty job with his time-of-injury employer. (Ex. 18 at 6.) A job analysis for that job indicates that it has "diversified clerical, statistical or semi-technical duties and routine prescribed within the employees physical restrictions." (Id. at 21, emphasis added.) The job description reiterates later on that duties are limited to "THE PHYSICAL RESTRICTIONS SET BY THE RELEASING PHYSICIAN." (Id., capitalization in the original.) The only qualification for the job was that the worker be a "Loram Employee injured during the course of employment who has been released by a physician to commence a light duty assignment." (Id.) Thus, this job was plainly within Dr. Dewey's restrictions, and claimant has not presented evidence to the contrary.
In December 2000, additional job analyses were submitted to Dr. Gary, who approved claimant's return to work as a motel desk clerk and frame assembler, as well as an airport pre-board screener with the comment, "Needs to be able to move about and sit intermittently." (Id. at 1.(4)) A vocational consultan
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