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2001 MTWCC 42
WCC No. 2000-0107
Summary: Claimant, who suffers from carpal tunnel syndrome and a cervical radiculopathy or radiculitis, alleged that her conditions are caused by her full-time work as an LPN at the Montana Developmental Center. One of her treating physicians opined that her conditions were related to her LPN work and part-time work as a cosmetologist. An occupational disease panel of three physicians were split on the issue, two opining that her work as an LPN did not proximately cause claimant's conditions, the third agreeing that it did. All opinions were set out in medical records and reports; the physicians were not deposed and did not testify. In resolving the conflict of opinions the hearing officer cited the treating physician's opinion as inadequately addressing statutory proximate cause criteria, and relied on the opinions of the two panel members who found no causation. He failed to consider the third panel member's opinion finding a causal connection.
Held: The hearing officer erred in failing to consider the third panel member's opinion, therefore the matter is remanded for reconsideration, specifically to consider the third member's opinion. When reconsidering, the hearing officer must consider the substance of the opinions, not the technical terms used by the doctors.
¶1 This is an appeal from a determination by a Department of Labor and Industry hearing officer that claimant does not suffer from an occupational disease. The case was submitted to the hearing officer based on medical records of various physicians and claimant's testimony. The physicians were not deposed and did not testify at hearing, therefore, there was no opportunity to explore their conflicting opinions regarding the presence or absence of an occupational disease.
¶2 There is little question that claimant suffers from carpal tunnel syndrome and cervical radiculitis or radiculopathy affecting her right arm. The real question presented in the proceeding below was whether those conditions constitute occupational diseases attributable to claimant's employment as a licensed practical nurse (LPN) at the Montana Developmental Center (MDC), which is insured by the State Fund. Four physicians rendered written opinions. Two concluded that her conditions were occupationally related, specifically to her full-time work at MDC and her part-time work as a cosmetologist. The other two physicians opined that her conditions were not related to her employments.
¶3 Dr. Steven Speth, an orthopedic surgeon in Bozeman, Montana, who treated claimant found that her conditions were occupationally related, writing:
(Ex. F at 4.)
¶4 After the claimant filed her occupational disease claim, the Department designated Dr. Max Iverson, an Helena orthopedic surgeon, to perform a medical panel examination. (Ex. M at 29.) He personally examined claimant and reviewed her medical records, but concluded that her conditions did "not appear to have an occupational disease basis." He wrote:
(Ex. B at 4.)
¶5 Claimant then requested a second examination and the Department designated Dr. Patrick Galvas, who specializes in occupational medicine and physical and rehabilitation medicine, to examine claimant. (Ex. M at 15.) He personally examined claimant and reviewed her medical records. He found that claimant's conditions constituted an occupational disease, writing:
(Ex. E at 2.)
¶6 The Department then designated Dr. Thomas L. Schumann, a Billings physician specializing in occupational disease, as the third panel member. (Ex. M at 18.) It does not appear that he discussed the case with the other two panel members (Drs. Iverson and Galvas.) (Ex. H.) He did not examine claimant but he did perform a records review and concluded that claimant is not suffering from occupational diseases. He wrote:
(Ex. H at 1-2.)
¶7 The hearing officer determined that the opinions of Drs. Iverson and Schumann were more persuasive than Dr. Speth's opinion because "Dr. Speth did not adequately address the issue of causation." Findings of Fact; Conclusions of Law; and Order at 6. However, in reaching his conclusion he failed to consider or discuss Dr. Galvas' opinion. Dr. Galvas, as a member of the medical panel, is presumed to be familiar with causation standards. His opinion was entitled to consideration, especially since he was a member of the medical panel and was therefore independent of either party. Upon judicial review, the Court may reverse and remand for further proceedings where a decision is affected by an error of law. § 2-4-704(2)(iv), MCA. While the hearing officer must determine the ultimate weight to be given evidence, he cannot arbitrarily ignore or disregard evidence, and must prepare adequate findings "so that the reviewing court does not have to speculate as to the reasoning" of the fact finder. In Re U.S. Currency, 273 Mont. 474, 483, 905 P.2d 148, 154 (1995).
¶8 Where, as in this case, the causation opinions are rendered in general terms rather than in lock-step with the five, largely redundant statutory criteria set out in section 39-72-408, MCA (1997), the hearing officer must consider the substance of the opinions and whether they are sufficient to satisfy the criteria even though not couched in the precise terms of the statute. The fact that opinions do not exactly track the statutory criteria is insufficient to disregard them. Upon remand the hearing officer shall evaluate the substance of the opinions.
¶9 Ultimately, resolution of a case of this kind based solely on medical records and reports is unsatisfactory. How is a fact finder to decide which opinion is more persuasive where the doctors, at least on paper, appear equally qualified, and the reports do not provide supporting citation or authority which would indicate which physician is more likely correct? The parties, particularly the claimant, who bears the burden of proof, should have called the doctors to testify in more detail regarding the basis of their opinions and thereby provide the hearing officer with a better basis for resolving the conflict in opinions. That was not done here, so the decision must be made based on the records presented.
¶10 The decision below is reversed and the matter remanded to the Department for reconsideration. Upon remand, the Department's hearing officer shall specifically consider Dr. Galvas' opinion, along with the opinions of Drs. Speth, Iverson, and Schumann, in determining whether claimant suffers from an occupational disease. Further, the hearing officer shall look to the substance of the causation opinions, rather than specific words used by the doctors, to determine if the statutory causation criteria are met.
¶11 This decision is otherwise certified as final for purposes of appeal. ARM 24.5.348.
¶12 Any party to this dispute may have twenty (20) days in which to request a rehearing from this Order Remanding for Further Proceedings.
DATED in Helena, Montana, this 13th day of August, 2001.
c: Ms. Margery LaFournaise
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