No. 96-100

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

EBI/ORION GROUP (Connecticut Indemnity),

Petitioner and Respondent,

v.

MICHAEL S. BLYTHE,

Respondent and Appellant.

APPEAL FROM: Workers' Compensation Court, State of Montana,
The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard R. Buley; Tipp & Buley, Missoula, Montana

For Respondent:

Charles E. McNeil; Garlington, Lohn & Robinson,
Missoula, Montana

Submitted on Briefs: November 21, 1996

Decided: January 7, 1997
Filed:

__________________________________________
Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

EBI/Orion is a workers' compensation insurer which insured
Community Medical Center (Community) in Missoula. The appellant,
Michael S. Blythe (Blythe), worked at Community as a certified
respiratory therapy technician. Blythe filed a claim seeking
compensation and medical benefits due to alleged mental injuries he
suffered while employed at Community. The Workers' Compensation
Court found that Blythe was not disabled. We reverse and remand.

Background

On January 29, 1989, Blythe was stuck by a needle in a
arterial blood gas kit which had just been used to draw blood from
an AIDS infected patient. Since that time, Blythe has not tested
positive for the HIV virus and there appears to be no reasonable
prospect that he was infected by the needle. Nonetheless, Blythe
claimed that he suffered disabling psychosis and depression as a
result of the incident. He claimed that he has auditory and visual
hallucinations which have affected his ability to concentrate and
work. EBI/Orion accepted liability and paid temporary total
disability benefits under a reservation of rights. Six years
later, in 1995, EBI/Orion filed a petition with the Workers'
Compensation Court to determine the extent of Blythe's disability.
EBI/Orion argued that Blythe is malingering; that he is faking
mental illness in order to obtain monetary compensation on account
of the incident.

The issue presented to the Workers' Compensation Court was
whether Blythe's symptoms were real or fabricated. The Workers'
Compensation Court, based upon the testimony of two clinical
psychologists, Dr. Richard Rogers and Dr. David Faust, found that
the symptoms were fabricated. The issues presented to this Court
are as follows:

1. Should the Workers' Compensation Court have ordered an
independent medical examination by a psychologist who is neither a
physician nor licensed to practice in the State of Montana?
2. Whether the Workers' Compensation Court's determination
that Blythe was feigning his illness is supported by substantial
credible evidence.
3. Did the Workers' Compensation Court err in not giving
more weight to the treating physician than to the opinions of two
psychologists; one of whom had never met Blythe and the other who
had evaluated Blythe only once?

Standard of Review

We review Workers' Compensation Court's findings of fact to
determine whether the findings are supported by substantial
credible evidence. The Court reviews conclusions of law to
determine whether the lower court's interpretation of the law is
correct. Kloepfer v. Lumbermen's Mut. Cas. Co. (1996), 276 Mont.
495, 916 P.2d 1310.

Discussion

We first address the question of whether the Workers'
Compensation Court should have ordered an independent medical
examination by a psychologist who is neither a physician nor
licensed to practice in the State of Montana.

Blythe's treating physician was William Stratford, M.D. Dr.
Stratford is a board certified psychiatrist, a board certified
disability consultant and is certified by the American Board of
Forensic Examiners. He is a fellow of the American College of
Forensic Psychiatry, a subspecialty which deals with the detection
of malingering. Dr. Stratford first started treating Blythe in
October of 1989 soon after the incident and continued seeing him
through 1995.

On May 24, 1995, EBI/Orion sent out notice of an independent
medical examination (IME) by a Dr. Rogers. Blythe objected to the
notice of IME on the following grounds: (1) the rules of the
Workers' Compensation Court contain no provision for an IME; (2)
Dr. Rogers was not previously listed as a witness; (3) an IME must
be performed by a medical doctor; and (4) any IME would be invalid
due to the effect of anti-psychotic medications Blythe was taking.
The Workers' Compensation Court issued an order addressing
each of Blythe's objections. The court determined that there was
no evidence to support Blythe's claim that his use of anti-
psychotic drugs would prevent a valid examination. The court then
ruled that, although the Workers' Compensation Court may not have
a rule allowing IMEs, there is statutory provision for an IME under
 39-71-605, MCA. As to the alleged lack of notice concerning the
IME, the court held that the issue had been addressed in a previous
scheduling order and that Blythe had received adequate notice.
Blythe's final objection to the IME was that Dr. Rogers was
not a physician licensed in the State of Montana. In addressing
this objection, the court held that, although  39-71-605, MCA,
refers to an IME by a "physician," other provisions of the Workers'
Compensation Act make it clear that the term "physician" is used in
a broad sense and does not refer only to medical doctors. Relying
on 1993 statutory definitions, the court noted that the term
"treating physician" encompasses not only M.D. physicians but also
chiropractors, physician assistants and dentists. Section 39-71-
116(30), MCA (1993). The court thus held: "I conclude that the
legislature intended the word 'physician' to refer generally to
persons with special expertise in the treatment of physical and
psychological conditions, including Ph.D. clinical psychologists."
After reviewing the law in effect at the time of trial, we hold
that the court's ruling on this point of law was in error.

EBI/Orion, relying on Buckman v. Montana Deaconess Hosp.
(1986), 224 Mont. 318, 730 P.2d 380, contends that the law in
effect at the time of the claimant's injury controls. Thus,
EBI/Orion argues that this January 1989 injury is controlled by the
1987 version of  39-71-605, MCA, which provides for IMEs by
"physicians" who have had "adequate and substantial experience in
the particular field of medicine concerned with the matters
presented by the dispute." Section 39-71-605(2), MCA (1987).
Prior to 1993, a "physician" was defined as being a "'surgeon'
and in either case means one authorized by law to practice his
profession in this state." Section 39-71-116(17) MCA (1991).

EBI/Orion's reliance of Buckman and thus the 1987 version of
the law, however, is misplaced. The Buckman rule only applies to
substantive rights of a claimant, such as the right to benefits
allowed at the time of injury. Buckman, 730 P.2d at 382 (citation
omitted). We have held that the statutes in effect at the time of
trial control when the subject is procedural rather than
substantive. State Compensation Ins. v. Sky Country (1989), 239
Mont. 376, 379, 780 P.2d 1135, 1137. A rule as to who is qualified
to conduct an IME is a procedural rather than a substantive rule.
Thus, the law in effect as to IMEs as of the date of the trial is
controlling.

The question then becomes whether the 1993 version of  39-
71-605, MCA, allows for an IME to be conducted by a clinical
psychologist. Section 39-71-605(2), MCA (1993), provides for an
IME by a physician or panel of physicians. The 1987 specific
definition of "physician" was deleted by the legislative amendment
in 1993 and replaced with a definition of "treating physician" as
follows:

(a) a physician licensed by the state of Montana
under Title 37, chapter 3, and has admitting privileges
to practice in one or more hospitals, if any, in the area
where the physician is located;
(b) a chiropractor licensed by the state of Montana
under Title 37, chapter 12;
(c) a physician assistant-certified licensed by the
state of Montana under Title 37, chapter 20, if there is
not a physician, as defined in subsection 30(a), in the
area where the physician assistant-certified is located;
(d) an osteopath licensed by the state of Montana
under Title 37, chapter 5; or
(e) a dentist licensed by the state of Montana under
Title 37, chapter 4.

Section 39-71-116(30), MCA (1993).

The above definition is broader than the generally accepted
definitions of "physician" as being a person lawfully engaged in
the practice of medicine. Black's Law Dictionary, 1147 (6th ed.
1990). "The term commonly refers to a doctor of medicine (MD) or
a doctor of osteopathy (DO)." The American Medical Association,
Encyclopedia of Medicine, 793 (1989). In the absence of a definition
of "physician," the Workers' Compensation Court looked to the
definition of "treating physician" which encompasses more than
medical doctors.

The Workers' Compensation Court, in light of the above
definition, concluded that the term "'physician' is to be used in
a broad sense and does not refer only to medical doctors." We hold
that the court's interpretation is too liberal. Section 39-71-
105(4), MCA (1993), provides that "Title 39, chapters 71 and 72,
must be construed according to their terms and not liberally in
favor of any party." While we agree that "treating physician" is
not limited to medical doctors, we do not agree that even that
broad definition encompasses Dr. Rogers.

The legislature was very specific in defining which
professionals come within the definition of "treating physician."
The professionals listed were not listed by way of example.
Rather, they were set forth as an exhaustive list. The legislature
chose not to include psychologists on this list. The role of the
court in interpreting statutory language is simply to ascertain and
declare what is in terms or in substance contained therein, not to
insert what has been omitted or to omit what has been inserted.
Section 1-2-101, MCA; Goyen v. City of Troy (1996), 276 Mont. 213,
221, 915 P.2d 824, 829. Furthermore, it must be noted that each of
the professionals that are listed in the definition,  39-71-
116(30) MCA (1993), must be licensed by the State of Montana.
Thus, even if we were to assume, arguendo, that psychologists were
encompassed in the list of professionals, we would likewise have to
assume that, like the other listed professionals, a psychologist
would have to be licensed to practice in the State of Montana. As
used in Title 39, Chapter 71, MCA, the term "treating physician"
does not encompass the profession of clinical psychology, nor is
Dr. Rogers licensed to practice in the State of Montana. Clearly,
Dr. Rogers does not qualify as a "physician" ("treating" or
otherwise) for purposes of an IME examination.

We hold that the Workers' Compensation Court erred in
requiring Blythe to submit to an IME by Dr. Rogers. The court
further erred in relying on Dr. Rogers' testimony, which was based
upon his examination of Blythe, to conclude that Blythe "has
fabricated and feigned mental illness in an attempt to advance his
legal claims."

The Testimony of Dr. Faust:

Our holding that IMEs must, by statute, be conducted by
"physicians," not psychologists, does not affect the testimony of
Dr. Faust. Although Dr. Faust, like Dr. Rogers, is a clinical
psychologist, Dr. Faust did not conduct an IME and thus he was not
subject to the definition of "physician" as we have interpreted
that term in the context of  39-71-605 and -116(30), MCA (1993).
Dr. Faust, a professor of psychology from the University of Rhode
Island, is a recognized authority on malingering. After reviewing
Blythe's psychological tests and listening to Blythe testify at
trial, he testified that, in his opinion, Blythe is malingering
mental disorders.

In the Workers' Compensation Court, Blythe argued that Dr.
Faust did not conduct a face-to-face examination and that his
testimony should not carry as much weight as the treating
physician, Dr. Stratford. Blythe now argues in his appellate reply
brief that since Dr. Faust is not a medical doctor, his testimony
is not "medical" evidence under  39-71-702(2), MCA (1987). Blythe
cites Kloepfer for the proposition that the Workers' Compensation
Court is only to resolve conflicts in "medical" testimony. He
argues that in his case there is no conflicting "medical" testimony
since the only experts for the insurer were psychologists who are
not "medical" doctors; that the treating physician, Dr. Stratford,
was the only medical doctor testifying.

Blythe, however, did not object to the testimony of Dr. Faust
nor did he ask the court to reconsider its decision which
explicitly relies on both the testimony of Dr. Rogers and Dr.
Faust. In the absence of any sort of objection to Dr. Faust's
testimony, the Workers' Compensation Court had no basis for
disregarding the testimony of the psychologist. Since Blythe
failed to challenge the testimony of Dr. Faust in the Workers'
Compensation Court or ask that court to reconsider its decision, he
cannot now raise the issue for the first time on appeal.

Guardianship & Conserv. of Estate of Tennant (1986), 220 Mont. 78,
83, 714 P.2d 122, 125.

Furthermore, the argument that Dr. Faust and Dr. Rogers did not present "medical" testimony was raised for the first time in Blythe's reply brief. Rule 23(c), M.R.App.P.,
requires that reply briefs be confined to new matter raised in the
respondent's brief. Thus, an appellant is prohibited from raising
new issues or theories in a reply brief. Loney v. Milodragovich,
Dale & Dye, P.C. (1995), 273 Mont. 506, 512, 905 P.2d 158, 162.
For all of the above reasons, we reject Blythe's suggestion that
the Workers' Compensation Court erred in considering the testimony
of Dr. Faust.

Since the court's conclusion that Blythe was malingering was
based partly on testimony to which there was no objection and
partly on inadmissible testimony, a question remains as to what the
court's findings of fact and conclusions of law would have been
absent Dr. Rogers' IME. We will not substitute our judgment for
that of the Workers' Compensation Court as to weight of evidence on
questions of fact. Mennis v. Anderson Steel Supply (1992), 255
Mont. 180, 184, 841 P.2d 528, 530. Accordingly, we remand this
matter to the Workers' Compensation Court for a reweighing of the
evidence as to malingering; contrasting the testimony of Blythe's
experts, including Dr. Stratford, with the testimony of EBI/Orion's
remaining expert, Dr. Faust.

Summary

As to issue number one, we hold that the Workers' Compensation
Court should not have ordered an independent medical examination by
a psychologist who is neither a physician nor licensed to practice
in the State of Montana. On issue number two, we remand for new
findings and conclusions after discounting the IME performed by Dr.
Rogers as well as his trial testimony. In light of the remand on
issue number two, we need not address issue number three other than
to note that, as a general rule, we have held that the testimony of
a treating physician is entitled to greater evidentiary weight.
Pepion v. Blackfeet Tribal Industries (1993), 257 Mont. 485, 489,
850 P.2d 299, 302. "Nevertheless, a treating physician's opinion
is not conclusive. To presume otherwise would quash the role of
the fact finder in questions of an alleged injury." Kloepfer, 916
P.2d at 1312.

Reversed and remanded for reconsideration consistent with our
holding herein.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON