Evidence: Expert Testimony: Physicians

MONTANA SUPREME COURT DECISIONS
Harrison v. Liberty Northwest Inc. Corp. [04/01/08] 2008 MT 102 The Workers’ Compensation Court is responsible for resolving conflicting testimony and assigning the weight to be given to witness testimony. Gamble v. Sears, 2007 MT 131, ¶¶ 20-21. Where expert testimony from two physicians may have supported the WCC making different findings leading to different conclusions, the Montana Supreme Court will not disturb the WCC’s factual findings because the WCC was entitled to assign greater weight to certain testimony in its position as fact finder and the WCC’s conclusions were supported by substantial credible evidence.
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Taylor v. Montana State Fund [05/23/12] 2012 MTWCC 17 Where Petitioner’s treating physician saw her shortly after her initial injury and was able to observe and speak with Petitioner on an almost daily basis about her injury and pain levels, the Court places more weight on the treating physician’s opinion than of the opinion of the IME physician with impressive credentials and years of experience who spent an hour with the Petitioner more than two years after her initial injury.

Taylor v. Montana State Fund [05/23/12] 2012 MTWCC 17 Despite not receiving official notice that Respondent’s expert would testify about when Petitioner reached MMI, the expert’s IME opinion was provided before the expert disclosure exchange and Petitioner possessed copies of his supporting documentation.  The sanctions sought by Petitioner of limiting the expert’s testimony about MMI would be extreme and inappropriate under these circumstances and is denied.

Koch v. Employers' Ins. Group [04/30/12] 2012 MTWCC 14 The IME physician believed Petitioner was embellishing and exaggerating her pain; however, no amount of purported embellishment will cause the objective medical finding of a herniated disk to appear on an MRI.  The weight of the evidence preponderates towards Petitioner’s contention that her disk herniation was caused by her IA where a diagnostic radiologist opined that the herniated disk should have appeared on a CT scan that predated the Petitioner’s IA if it was present then, and a spinal surgeon testified that the mechanism of Petitioner’s IA was more probably than not the cause of Petitioner’s herniated disk.
Hagemann v. Montana Contractor Compensation Fund [07/10/08] 2008 MTWCC 35 Respondent objected to the admission of opinion testimony of a physician regarding the cause of Petitioner’s pulmonary condition on the grounds that her opinions lacked foundation. The physician is board-certified in internal medicine, is Petitioner’s treating physician, and qualifies as a treating physician under § 39-71-116(37)(a), MCA. She treats pneumonia and pulmonary embolisms as a regular part of her practice and testified at length regarding her treatment of Petitioner and the basis for her opinions. Respondent’s foundational concerns go to the weight and not the admissibility of the testimony.
Gryttenholm v. Fremont Industrial Ins. [04/19/02] 2002 MTWCC 24 Testimony of a physician will be excluded where the claimant submitted to an examination by a physician procured by the insurer under the pretense that the physician specialized in an area of medicine different than represented to the claimant and where the nature of the physician's role (treatment versus independent medical examination) is ambiguous or not fixed.
Davis v. Ins. Co. of PA [08/20/01] 2001 MTWCC 45 The testimony of tumor expert, with over 30 years experience and who is well versed in current medical research and literature as to cause of a brain tumor, is more persuasive than the testimony of far less qualified physicians.
Munroe v. MT Electric & Telephone Pool [08/16/01] 2001 MTWCC 43 Where one physician recommended surgery at three levels of claimant's spine and weakly opined that the surgery was related to a work accident, his opinions are unpersuasive. He failed to review and consider claimant's extensive medical records and history. The claimant's statements to him regarding her history of pain were inaccurate in important respects and his opinions were contradicted by four other physicians, including two who had treated claimant for a longer period of time and three who had similar surgical experience.
Beyl v. Liberty Northwest Ins. Corp.[12/21/00] 2000 MTWCC 75 Some deference may be given to a specialist whose specialty encompasses treatment of the claimant's specific condition.
MSGIA v. Robert Ellington [08/09/00] 2000 MTWCC 47 Testimony by two doctors – one a specialist in occupational disease, but not board certified and without a residency in that speciality, and the other a neurologist – that OD claimant's alleged fatigue, headaches, memory loss, confusion, dizziness, depression and other symptoms resulted from workplace exposure to chemicals not found persuasive by WCC where (1) both doctors believed claimant was exposed to trimellitic anhydride and toluene di-isocyanate, but evidence did not show those chemicals were present in cleaning supplies used by claimant; (2) one doctor's credibility was undermined by his lack of candor; (3) and third medical witness, who was board certified specialist in allergy, immunology, and internal medicine, a medical school professor with numerous relevant publications, and a recognized expert in immunology concerning multiple chemical sensitivity, testified more credibly that multiple chemical sensitivity as a diagnoses was discredited and that claimant's symptoms were explicable in terms of his other medical conditions, which included hypo-gonadism, hypothyroid, sleep apnea, preexisting depression, and rhinitis.
Block v. Indemnity Ins. Co. of North America [04/18/00] 2000 MTWCC 23 Where records from numerous medical providers documented claimant's drug seeking behavior, Court rejected testimony of physician who opined claimant had not reached MMI but had not reviewed complete set of medical records.
Hall v. State Compensation Insurance Fund [01/13/99] 1999 MTWCC 3 WCC was not persuaded by opinions of physicians treating claimant for workplace allergic-type reactions where those physicians were not certified by the American Academy of Allergy and Immunology, which certifies "traditional" allergists, and utilized non-traditional allergy testing and treatment practices criticized as non-scientific by IME physician.
Wall v. National Union Fire Ins. Co. [02/24/98] 1998 MTWCC 11 As a general rule, the testimony of a treating physician is entitled to greater evidentiary weight, although it is not conclusive. At minimum, the treating physician is the tie breaker where there is evenly balanced, conflicting medical testimony. In this particular case, not only did the treating physician have experience with claimant's condition both pre- and post-injury, he had the greater medical expertise with respect to claimant's knee condition.
EBI/Orion Group v. Blythe, 281 Mont. 50, 931 P.2d 38 (1997) As a general rule, 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 v. Lumbermen's Mut. Cas. Co. (1996) 276 Mont. 495, 916 P.2d 1310.
Fox v. Liberty Mutual Fire Ins. Co. [02/27/96] 1996 MTWCC 21 While Linden v. Huestis, 247 Mont. 383, 807 P.2d 185 (1991), holds that a physician who did not examine claimant may not testify at trial concerning claimant’s motivation and potential secondary gain (“he was not qualified as a human polygraph”), the doctor is qualified to render various opinions based on his medical training and experience, including testimony concerning an impairment rating.