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Davidson v. Horton Industries2/27/2002
lder and neck. Dr. Bengtson diagnosed chronic right shoulder group myofascial pain syndrome. He suggested Claimant refrain from repetitive activity with the right upper extremity, but otherwise agreed with the FCE performed by Sioux Valley Hospital. On April 19, 1996, Dr. Bengtson wrote, "I agree that [Claimant] has reached maximum medical improvement. Her permanent partial disability would be 0% according to AMA guidelines."
34. In addition, Dr. Tountas noted Claimant did not have any neck or upper back spasm. Dr. Tountas stated he expected Claimant's "right arm to be small given the fact that she demonstrated limited motion with pain complaints and pain over a period of over two years." Dr. Tountas explained:
Well, if the pain were of sufficient magnitude so that the patient can hardly use the upper extremity to any degree, then one would expect either visible atrophy—that is, you frequently can see wasting of muscles if you look at a hand or extremity—or if it's a subtle change, then you should be able to measure it. And again, this is done by just taking a tape measure. And I've done this thousands of times. And you can compare one with the other and get an idea as to whether there is an atrophy or wasting of the muscle that would account for the inability to use it; that is, the disuse.
However, in this case, Dr. Tountas did not find any evidence of atrophy as to Claimant's right upper extremity.
36. Based on his examination, Dr. Tountas was unable to reach a diagnosis as to Claimant's condition. Dr. Tountas opined "the objective findings do not support a diagnosis." Dr. Tountas stated:
There may have been some references to [trigger points or muscle spasms], but I don't find those to be consistent enough to explain this very bizarre, nonanatomic sensory deficit . . . . I also find that in FCEs, we do have a great deal of exaggerated pain behavior. There has been no objective testing for a diagnosis that can account for this much pain . . .
So I, therefore, feel that there are insufficient findings to make this a diagnosis which causes this much disability or any impairment or inability to work.
In fact, Dr. Tountas could not find any anatomical reason for Claimant's pain complaints.
37. Employer again offered Claimant a job in the repair kit area. This position included receptionist duties and was within the restrictions set by the FCE done at the Mayo Clinic.
39 All the doctors agree that objective tests reveal nothing that can explain Claimant's complaints of pain. Under SDCL 62-1-15, "evidence concerning any injury shall be given greater weight of supported by objective medical findings." No such support exists here.
41. Employer presented surveillance videos showing Claimant engaged in certain activities. The videos show Claimant pulling weeds in her garden and at other times, carrying items with her right arm. Claimant is shown moving with ease and at no time does she appear to be in any physical discomfort.
42. In addition, when Claimant attempted to return to work on January 30, 1997, in the repair kit area she was videotaped performing the duties of the job. Claimant was able to work at her own pace and moved with ease. Claimant did not show any outward signs of pain. Claimant was instructed that she should get up and move around every twenty minutes. Claimant testified that her return to work effort "didn't go very well" and she had to leave after approximately forty minutes. It is impossible to accept Claimant's testimony that she was experiencing such extreme pain after viewing the video.
43. Every physician who treated Claimant before
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