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Boster v. Liberty Mutual Fire Insurance Company12/19/2002
t employed by Liberty did market research disclosing that all three jobs are available in Helena and statewide in significant numbers (id. at 1-2) and the claimant has offered no evidence otherwise.
At present it appears that Dr. Hunter and Dr. Max Iverson, one of Dr. Hunter's partners, are claimant's treating physicians. Both doctors saw claimant in 2001.
In light of claimant's persistent pain complaints, Dr. Hunter recommended on January 9, 2001, that new imaging studies and possibly a new EMG be obtained. A new MRI was obtained on January 18, 2001. As with prior MRIs, it showed a centrally bulging disc which Dr. Iverson characterized on April 2, 2001, as "not that impressive." (Ex. 16 at 130.)
Dr. Iverson examined claimant on February 28, 2001, and April 2, 2001. In his note of the first examination he commented:
The patient manifests a significant amount of irritability with respect to examination of the back as well attempted examination of neural involvement into the lower extremities. The objective findings do not support the amount of subjective complaints that the patient rendering. (Id. at 129, emphasis added.)
In his note for the second examination, Dr. Iverson commented that claimant had "poor pain tolerance even on trivial evaluation" and again noted that his subjective complaints were "out of proportion to any objective findings." (Id. at 130, emphasis added.)
Dr. Hunter testified at trial. He testified that claimant's history, imaging, and EMG studies presented a confusing history. Whereas, some EMG studies indicated L5-S1 involvement, claimant's imaging studies did not; and, while imaging studies indicated a bulging disc at L4-5, claimant's subjective complaints did not fit a L4-5 impingement. (See e.g., Tr. at 6-10.) Dr. Hunter probably put it best when he said:
When I started taking care of Mr. Boster, this [the cause of his symptoms] was the uncertainty. I mean, he'd been looked at and looked at and looked at and nobody could make the subjective complaints fit with the objective problems. Everybody kept chasing down the subjective complaints and it really is like the blind man and the elephant type of thing, everybody was taking best guess for trying to patch this together because it didn't fit a standard course. (Id. at 11, emphasis added.)
Dr. Hunter talked about the "big picture":
The big picture is the fact that there has been a great preponderance of subjective complaints not verified with objective findings, there is a real obvious psychological overlay component to this. . . . (Id. at 16, emphasis added.)
He noted that the finding that the bulging disc at L4-5 was worse in the 2001 MRI imaging was insignificant and could have been a daily variation or merely the result of a different MRI technique. (Id. at 19.) As to the 2001 EMG, he noted that it was so technically flawed that its suggestion of S1 nerve involvement was only a "may be" and even then it "doesn't necessarily fit with disc injury , it certainly doesn't fit with his subjective complaints." (Id. at 22-23, emphasis added.)
When asked the cause of claimant's pain, he indicated that claimant probably began with a "disc injury or an exacerbation of a disc that was already starting to degenerate" and probably has some component of discogenic pain; he has myofascitis (muscle pain); and perhaps S1 or S2 nerve root irritation which "doesn't fit well with anything else." (Id. at 25-26.) He was asked if claimant was exaggerating his pain and was unable to express an opinion because pain is subjective, but he did note that claimant had a "very hyperactive response to stimulus." (Id
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