Physicians: Treating Physician: Weight of Opinions

MONTANA SUPREME COURT DECISIONS

Ford v. Sentry Casualty Company, 2012 MT 156 In weighing the conflicting opinions of medical experts, the Montana Supreme Court gave less weight to the lone contrary opinion, noting that he appeared to not take the findings of another expert into account, and failed to document or cite any objective findings specific to his examination of Petitioner, relying instead on generalizations about his past experiences with other patients.

Montana State Fund v. Grande [03/20/12] 2012 MT 67 An independent medical examiner’s opinion will be given less weight than the treating physician where the IME doctor did not examine the claimant but gave his medical opinions solely on the basis of a medical records review, where the IME doctor’s opinions relied more on the claimant’s job title than on the actual duties of the job, and where the IME doctor opined that there was a “lack of any literature” that supported an aggravation of rheumatoid arthritis by working as a truck driver.

Wright v. Ace American, 2011 MT 43, 359 Mont. 332, 249 P.3d 485 Where the claimant’s treating physician was a pain specialist who was not aware of any special treatment that would help the claimant, the Court was correct in not giving his opinion more weight than that of an orthopedic specialist who opined that orthopedic treatment could improve the claimant’s shoulder condition.  The Montana Supreme Court further noted that the orthopedic specialist’s opinion was consistent and based upon his expertise as an orthopedic surgeon and his own numerous evaluations of the claimant.
EBI/Orion Group v. Blythe, 1998 MT 90 In evaluating persuasiveness of treating physician's opinion, where that opinion depends on claimant's credibility on many matters, such as reported symptoms, the WCC properly considered its own evaluation of claimant's credibility in light of his in-court testimony and the record as a whole.
EBI/Orion Group v. Blythe, 1998 MT 90 As a general rule, the opinion of a treating physician is accorded greater weight than the opinions of other expert witnesses. However, 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. The WCC, as the finder of fact, is in the best position to assess witnesses' credibility and testimony. In this case, WCC did not err in finding the testimony of a nationally known expert on neuropsychology more persuasive and a better explanation for all the evidence presented in the case than the testimony of a treating physician.
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.
Kloepfer v. Lumbermen’s Mutual Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996) While as a general rule the testimony of a treating physician is entitled to greater evidentiary weight, a treating physician’s opinion is not conclusive. To presume otherwise would quash the role of the finder of fact in questions of alleged injury and disability.
 
WORKERS' COMPENSATION COURT DECISIONS

Barnhart v. Liberty Northwest Ins. Corp. [09/13/16] 2016 MTWCC 12 This Court gave no weight to the “concurrence” of a physician who signed a prepared statement that he agreed with the “findings” of an IME report where this Court could not determine whether the physician agreed only with the diagnoses – which largely agreed with his own – or with the IME doctor’s opinions – which conflicted with the physician’s own recent treatment recommendations.

Barnhart v. Liberty Northwest Ins. Corp. [09/13/16] 2016 MTWCC 12 Where the insurer offered no reasons as to why an IME doctor’s opinion should outweigh the treating physician’s, this Court was unpersuaded by the IME doctor’s conflicting opinion.  The insurer did not argue that the IME doctor had superior credentials, nor superior evidence at his disposal, and the insurer had initially relied upon the opinions of the treating physician in adjusting the claimant’s claim.

Barnhart v. Liberty Northwest Ins. Corp. [09/13/16] 2016 MTWCC 12 While a treating physician’s opinion is generally entitled to greater weight, here, the treating physician was also well-informed about the claimant’s medical history due to the extensive records review he conducted as part of an IME he performed prior to becoming the claimant’s treating physician.

Vonfeldt v. Costco Wholesale Corp. [11/16/15] 2015 MTWCC 20 Treating physician’s opinion that Petitioner’s bakery job was the major contributing cause of her myofascial pain syndrome was more persuasive than the IME panel’s opinion that her work was a temporary aggravation of a pre-existing condition for three reasons: (1) Petitioner’s physician is a board-certified pain medicine specialist who has treated the Petitioner for years; (2) the panel’s opinion that Petitioner’s pre-existing myofascial pain syndrome was only temporarily aggravated by her heavy work as a baker is refuted by the evidence, as she had no neck and upper-back pain when she started as a baker and years later she continues to be in pain despite changing jobs; and (3) the treating physician’s opinion that Petitioner’s job was the major contributing cause of her pain syndrome is uncontroverted, since the panel physicians were never asked to compare other contributing causes and offer an opinion as to the leading cause.

Kellegher v. MACO Workers' Compensation Trust [08/12/15] 2015 MTWCC 16 Where the record indicated that the treating physician had significant interactions with Petitioner and had taken a strong interest in Petitioner’s attempts to return to work, and where a neuropsychologist who saw Petitioner on referral specifically inquired into Petitioner’s deficits, the Court assigned greater weight to those opinions than to those of an IME examiner who approved job analyses although he knew Petitioner was unable to perform one of the positions, and a neuropsychology IME examiner who observed that Petitioner’s demeanor presented no bar to employment.

Myles v. Sparta Insurance Company [05/30/14] 2014 MTWCC 19 The opinions of two treating physicians that Petitioner’s hip condition resulted from a work-related injury were more persuasive than the opinion of the IME physician who never asked Petitioner about the onset of symptoms but relied instead on a review of Petitioner’s medical records.  Although these records consistently referred to a popping sound and sudden onset of hip pain from stepping up into a semi-truck, the IME physician never referenced this history in his report and concluded Petitioner’s hip condition was not a result of a work-related injury.

Rushford v. Montana Contractor Compensation Fund [05/30/14] 2014 MTWCC 16 Where Petitioner allegedly suffered from a work-related respiratory condition, the Court reasoned that the IME physician and the treating physician had different, yet appropriate qualifications to evaluate the case.  The IME doctor’s expertise lies in the area of occupational exposure, while the treating physician’s expertise is respiratory conditions.  The Court further found that the IME physician had a higher quality of evidence upon which to base his opinions: he reviewed an extensive collection of Petitioner’s pre-exposure medical records and also reviewed video surveillance of Petitioner.

Rushford v. Montana Contractor Compensation Fund [05/30/14] 2014 MTWCC 16 While the Court found Petitioner’s treating physician credible and qualified, the Court gave his testimony and opinions less weight.  The treating physician’s reliance on Petitioner’s credibility was an inseparable component of his diagnosis and treatment, and while the treating physician found Petitioner credible, the Court did not.

Koch v. Employers Ins. Group [05/19/14] 2014 MTWCC 14 The Court found the opinions of an IME physician unpersuasive where the physician did not consider the fact that the Court already concluded that Petitioner had suffered a compensable injury and where the physician found that Petitioner’s pain complaints were not caused by her industrial accident because he did not consider radiological findings or muscle spasms to be objective medical findings, and where the Court found he avoided making objective medical findings by failing to conduct appropriate testing.

Baeth v. Liberty NW Ins. Corp. [05/05/14] 2014 MTWCC 10 Where the opinions of the IME physicians and a radiologist experienced in reading ARD x-rays were diametrically opposed to the opinions of the treating physicians, the Court gave greater weight to the treating physicians’ opinions that Petitioner was suffering from ARD, particularly where the record demonstrates that the treating physicians had more experience in identifying and treating Libby amphibole ARD than any other medical providers.

Monroe v. MACO Workers Comp Trust [03/17/14] 2014 MTWCC 7 Where neither of two expert witnesses were the decedent’s treating physician, the Court considered their respective qualifications relative to the issue at hand in determining which opinion to give the greater weight in determining the causation of the decedent’s asbestos-related disease.  The Court found that one expert had immersed himself in the field of asbestos-related medicine, and the other’s involvement in the field was “peripheral.”  Therefore, the Court assigned greater weight to the former in determining whether the decedent suffered an injurious exposure at the employment in question.

Engle v. Hartford Underwriters Ins. Co. [12/31/13] 2013 MTWCC 27 Where the Court found that letters Respondent’s counsel sent to certain IME doctors may have influenced their opinions, and these doctors were neither deposed nor testified at trial, the Court had no opportunity to explore whether the doctors reached their opinions independently of the attorney’s letters.  Therefore, the Court gave these opinions less weight.

Engle v. Hartford Underwriters Ins. Co. [12/31/13] 2013 MTWCC 27 Where the Court was presented with no evidence as to which medical records one IME physician reviewed in reaching his opinions, and the evidence indicated that another IME doctor did not review any of Petitioner’s older medical records, and where the Court was not given sufficient evidence to allow it to compare the qualifications of these doctors, the Court concluded that Petitioner’s treating physician was entitled to greater weight.

Peterson v. Liberty NW Ins. Corp. [12/31/13] 2013 MTWCC 26 The Court found the opinion of the treating physician more persuasive than that of the OD evaluator.  Not only had Petitioner’s physician treated him for ARD for over seven years, his deposition testimony was bolstered by the in-person testimony of the pulmonologist who trained him in diagnosing and treating ARD; who had treated Libby residents with ARD for decades; and who, like Petitioner’s treating physician, found Petitioner was suffering from ARD.

Gaudette v. Montana State Fund [03/19/13] 2013 MTWCC 7 Where a medical expert with “significantly superior” credentials saw Petitioner for a single in-depth evaluation, the Court concluded that under the treating physician rule, the opinion of Petitioner’s treating physician was entitled to greater weight because of the length and depth of her relationship with Petitioner.  Therefore, although the expert opined that Petitioner suffered from somatoform disorder, the Court was persuaded by the treating physician’s unequivocal opinion that Petitioner did not suffer from somatoform disorder.

Estate of Hirth v. Montana State Fund [12/27/12] 2012 MTWCC 47 Where two physicians reviewed the injured worker’s medical records and rendered impairment ratings, the situation falls under § 39-71-711, MCA, and not § 39-71-605, MCA, because these physicians did not conduct an IME, but rather rendered opinions based on their record reviews.  The value of their respective expert opinions, which conflict with the opinions of the treating physician, are a matter of weight, not admissibility.

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.
Ford v. Sentry Casualty Co. [07/20/11] 2011 MTWCC 19 Although an IME doctor opined that an industrial accident caused Petitioner’s cervical disk condition, Petitioner’s treating physician was unable to state so with a reasonable degree of medical certainty. The Court found no grounds to assign greater weight to the IME doctor’s opinion than to that of Petitioner’s treating physician and therefore the Court concluded Petitioner had not proven that an industrial accident caused his cervical disk condition.
Mullaney v. Montana State Fund [08/27/10] 2010 MTWCC 27 The Court rejected the insurer’s argument that the treating physician’s opinion should be given less weight because the treating physician’s medical records and opinion letter did not specifically mention his review of the claimant’s older medical records and because the treating physician did not specifically state whether the claimant suffered a temporary or permanent aggravation of an underlying condition.
Petritz v. Montana State Fund [06/10/10] 2010 MTWCC 17 The claimant suffered a myocardial infarction.  His treating physician is a board-certified interventional cardiologist who specializes in angioplasty.  A neurologist who is not board-certified in any specialty and who never examined the claimant disagreed with the treating physician’s opinion as to the cause of the claimant’s myocardial infarction.  The Court concluded that the treating physician’s opinion is entitled to greater weight, not only because he is the treating physician, but because he is more qualified than the other physician both through his training and educational background and because he actually examined the claimant.
Wright v. Ace American Ins. Co. [05/24/10] 2010 MTWCC 11 Although the claimant's treating physician is a well-qualified, credible pain management specialist, the Court found the opinions of an orthopedic surgeon regarding the likely causes and potential treatment of the claimant's shoulder condition entitled to greater weight. The treating physician's opinions go to the reality of the claimant's pain and how to best manage it, while the orthopedic surgeon is more specialized regarding the diagnosis and treatment of the claimant's shoulder condition, having personally examined the claimant on multiple occasions, and regularly treated other patients with shoulder conditions.

Johnson v. Liberty Northwest Ins. Corp. [07/01/09] 2009 MTWCC 20 Where Petitioner’s treating physician has a superior background, more experience working with the particular type of asbestos exposure at issue, and more experience treating these exposed patients, the Court finds his opinion more persuasive than a physician who has not actively treated patients for at least ten years and does not have the same experience working with the particular type of asbestos at issue.

Russell v. Watkins & Shepard [07/11/08] 2008 MTWCC 36 As a rule, the opinions of treating physicians are entitled to greater weight in this Court. However, the treating physician’s opinion is not conclusive. In this case, the treating physician concluded that Petitioner’s symptoms must have been caused by carbon monoxide poisoning because treatment alleviated the symptoms. However, the condition may have pre-dated Petitioner’s carbon monoxide exposure, and Petitioner has not proven that his symptoms are causally related to the exposure.
Healy v. Liberty Northwest [10/23/07] 2007 MTWCC 43 One physician opined that Petitioner’s back condition was permanently aggravated by his industrial injury on June 9, 2005. A second opined that it was not. This Court has previously found the opinion of a doctor more persuasive because of his “longer and later” treatment of a claimant. Siegler v. Liberty Ins. Corp., 2001 MTWCC 23, ¶ 53. Where the second doctor saw Petitioner for a single appointment in 2005 while the first physician treated Petitioner on multiple and more recent occasions, the first physician’s opinion was given greater weight.
Stewart v. Liberty Northwest Ins. Corp. [09/14/04] 2007 MTWCC 41 Although a treating physician’s opinion is generally accorded greater weight, the opinion is not conclusive. Where virtually no evidence that a causal connection between Petitioner’s surgeries and the purported damage to her knee exists, and her treating physician’s ultimate opinion that there is a causal relationship is belied by the entire remaining balance of his testimony acknowledging that he has no idea how the surgeries and knee damage are related, Petitioner has not met her burden of proof.

Vanbouchaute v. Montana State Fund [08/23/07] 2007 MTWCC 37 Where Respondent denied a request from Petitioner’s treating physician for surgery based on the opinion of a non-treating physician who conducted a file review and the opinion of a physician who conducted an independent medical exam, Respondent’s denial of the surgery was unreasonable. Although the treating physician’s opinion is not conclusive, none of the factors which would mitigate toward disregarding the treating physician’s opinion are present in this case. There were no issues of credibility as to any of the witnesses involved, nor was there any indication during the handling of the claim before trial that credibility was an issue.

Mack v. Transportation Ins. Co. [05/22/07] 2007 MTWCC 16 Although the Court found both physicians to be credible witnesses, the Court found the testimony of Dr. Whitehouse, Petitioner’s treating physician, to be more persuasive than Dr. Headapohl’s testimony. Both physicians relied on both subjective and objective information. Both physicians employed a certain amount of clinical judgment. Dr. Whitehouse has extensive experience specifically treating asbestos patients in Libby. He has also treated Petitioner for a considerable length of time. Additionally, the methodology utilized by Dr. Whitehouse to determine what constitutes the minimum viable DLCO is more persuasive than the methodology utilized by Dr. Headapohl. Therefore, the Court finds Dr. Whitehouse’s impairment rating more persuasive.
Copeland v. Montana State Fund [12/28/06] 2006 MTWCC 45 As a rule, the opinions of treating physicians are entitled to greater weight in this Court. However, the treating physician’s opinion is not conclusive and this Court remains the finder of fact. Kloepfer v. Lumbermen’s Mut. Casualty Co., 276 Mont. 495, 916 P.2d 1310 (1996). Where the treating physician opined that the claimant was at MMI but further stated that he would defer to the opinion of another physician who concluded otherwise, and where the treating physician reached the conclusion that the claimant was at MMI but had not seen the claimant in a year and a half and assumed that his condition was unchanged, the Court did not find the physician’s opinion that the claimant had reached MMI to be persuasive.
Alberts v. Transportation Insurance Co. [10/12/06] 2006 MTWCC 34 This Court has held that between equally qualified physicians, the one who has treated a claimant for a longer amount of time would generally be in a better position to understand the claimant’s diagnosis, prognosis, and impairment more fully than a physician who had evaluated the claimant on only one occasion. Kloepfer v. Lumbermens Mut. Cas. Co., 1994 MTWCC 5. Where two doctors saw Petitioner for one examination, and another doctor only reviewed her records, the Court gives greater weight to the opinion of Petitioner’s treating physician.
Alberts v. Transportation Insurance Co. [10/12/06] 2006 MTWCC 34 This Court has held that at a minimum, “the treating physician is the tie breaker where there is evenly balanced, conflicting medical testimony.” Wall v. National Union Fire Ins. Co., 1998 MTWCC 11, ¶ 67. In this case, there are four different doctors and four different diagnoses. Not only do these doctors not agree with her treating physician, they do not agree with each other. The treating physician’s opinion is entitled to the greater evidentiary
Harrison v. Liberty NW Ins. Corp. and Stillwater Mining Co. [05/12/06] 2006 MTWCC 22 Where Petitioner had two treating physicians and one treating physician offered an opinion as to whether Petitioner’s injury arose from his earlier injury, and the other treating physician was silent on the issue, the Court is left with the uncontroverted testimony of the treating physician offering an opinion.
Waite v. Montana Contractor Compensation Fund [6/5/98] 1998 MTWCC 47 WCC found claimant permanently totally disabled, relying in part upon opinion of treating physician, a physiatrist, over IME physiatrist. WCC gives greater weight to treating physician where both doctors' expertise appears similar. Treating physician knows claimant better; in addition, his opinion is bolstered by claimant's apparent desire to return to work and credibility in her pain reports.

Wall v. National Union Fire Ins. Co. [2/24/98] 1998 MTWCC 11As 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.

Lockhart v. New Hampshire Ins. Co. [12/11/97] 1997 MTWCC 67 Parties disputed whether claimant's wrist condition resulted entirely from deterioration of Silastic lunate implant he received fifteen years earlier, or whether his hammering in construction job caused fragmentation in implant or surrounding bone. WCC was persuaded an injury occurred, based upon: claimant's credible testimony that he had no wrist pain until the incident at issue, the treating physician was more familiar with claimant's condition than the IME physician (who performed hundreds of IMEs a year for insurance companies), and another physician's reference to a "fragment" on an x-ray supports the treating physician's analysis.
EBI/Orion Group v. Michael S. Blythe [6/20/97] 1997 MTWCC 39 On remand from the Supreme Court, see EBI/Orion Group v. Blythe, 281 Mont. 50, 931 P.2d 38 (1997)(Blythe I), the WCC disregarded the opinion of an IME psychologist not licensed to practice in Montana, but nevertheless continued to credit the opinion of a nationally-known expert in neuropsychology over that of the treating physician in light of all the evidence in the record, including evidence relating to claimant's credibility. Because the treating physician accepted claimant's statements, his opinion depended on claimant's credibility, which the Court, not the physician, was required in the final instance to evaluate.
Chapman v. National Union Fire Ins. Co. of Pittsburgh [6/25/96] 1996 MTWCC 44 Substantial evidence supported hearing officer's conclusion claimant could return to work under option (c) of section 39-71-1012, MCA (1987). Although claimant argues hearing officer did not give deference to treating physician's letter, a treating physician's opinion is not conclusive. Where the treating physician's letter contradicted his earlier opinions, which earlier opinions were consistent with other medical opinion and the results of a functional capacity evaluation, the hearing officer's conclusions would not be reversed on appeal.
Byun v. Montana Schools Group Ins. Auth. [06/21/95] 1995 MTWCC 50 Where the conflict in medical opinion is based in large part on philosophical differences regarding the occurrence and etiology of thoracic outlet syndrome, but no detailed evidence concerning the medical reasons for the dispute in this particular case have been provided, it is difficult to evaluate the opposing positions. Given the record, the opinion of the treating physician must be given the greater weight.
Frisbie v. Champion International Corporation [02/10/95] 1995 MTWCC 13 Though treating physician believed claimant’s pain was disabling and that his injury may have exacerbated his drinking problem, the Court found more convincing the testimony of two other physicians who believed claimant was capable of working, one noting non-organic pain behavior. This was based on the greater expertise of the latter two doctors and on the Court’s observation of one of the doctor’s testimony. A treating physician’s opinion is not conclusively presumed to be correct; if it were, the factual inquiry conducted by the Court would be superfluous.