Proof: Conflicting Evidence: Medical

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.

Russell v. Watkins & Shepard [06/24/09] 2009 MT 217 In Bain v. Liberty Mut. Fire Ins. Co., 2004 MTWCC 45 (aff’d 2005 MT 299N), the Workers’ Compensation Court set forth a non-exhaustive list of 10 factors that it generally considers when evaluating the causation issue based on conflicting or complicated medical testimony and evidence. There is no indication, either in Bain or any other reported decisions of the Montana Supreme Court, that strict compliance with these 10 factors is a precondition to the admissibility of medical testimony or 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.

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.
Ingle v. Montana State Fund [02/03/11] 2011 MTWCC 3 Where one doctor opined that the claimant’s symptoms were caused by carbon monoxide exposure, but another physician offered a persuasive critique of that opinion and several others concluded that no connection existed between Petitioner’s symptoms and carbon monoxide poisoning, the Court concluded the claimant had not met her burden of proving that she suffered a work-related injury or disease.

Dewey v. Montana Contractor Compensation Fund [05/16/09] 2009 MTWCC 17 While the Court found a family nurse practitioner who had treated Petitioner to be a credible witness, it further found her medical testimony entitled only to limited weight. She did not diagnose or treat Petitioner for his alleged occupational disease beyond prescribing Ibuprofen for his subjective reports of pain. Although she ultimately examined Petitioner and concluded that he had carpal tunnel syndrome, she did so with an inaccurate description of his accident and without access to his previous medical records. Therefore, her opinion provides scant evidence as to whether Petitioner’s carpal tunnel syndrome is work-related.

Russell v. Watkins & Shepard [07/11/08] 2008 MTWCC 36 The Court did not find the diagnoses of various conditions allegedly arising from low-level carbon monoxide poisoning to be credible where the diagnosing physician had never treated another patient with suspected low-level carbon monoxide poisoning, none of the other medical experts of either party agreed with the diagnosing physician, and the diagnosing physician conceded that no peer-reviewed literature supported his conclusion that the results of various tests he performed supported the diagnosis.

Hagemann v. Montana Contractor Compensation Fund [07/10/08] 2008 MTWCC 35 The determination as to whether Petitioner’s pulmonary conditions were work-related came down to the conflicting opinions of two physicians – Petitioner’s treating physician, who is a board-certified internist who sees pneumonia and pulmonary embolisms as a regular part of her practice, and Respondent’s IME doctor, who has never treated a pulmonary embolism and last treated a case of pneumonia in the early 1980s. Not only does Petitioner’s treating physician’s opinion carry greater weight because she was the treating physician, but the Court also finds her qualifications regarding the diagnosis and treatment of pneumonia and pulmonary embolisms to be more substantial than the qualifications of Respondent’s IME doctor.
Heffner v. Montana State Fund [07/13/07] 2007 MTWCC 29 Where the Court is presented with the testimony of two extremely competent and credible neurosurgeons, each of whom, after examining the same patient, arrived at diametrically opposite conclusions and neither of whom is considered a treating physician, the Court looked at the medical evidence in its totality and concluded that Petitioner did not meet his burden of proof.
Cardwell v. UEF [06/15/07] 2007 MWCC 22 In light of the testimony regarding the physical demands of the work Petitioner performed (hanging sheetrock), the fact that Petitioner can recall no specific incident preceding his neck pain, and the uncontroverted medical evidence that Petitioner’s condition is work related, the Court concludes that Petitioner’s condition is more likely than not an occupational disease.
Doubek v. CNA Ins. Co. [11/10/04] 2004 MTWCC 76  Where the treating physician has greater expertise in the treatment of the medical condition at issue than other physicians rendering opinions in the case, the treating physician's opinions are entitled to even greater deference than required under the treating physician rule.
Doubek v. CNA Ins. Co. [11/10/04] 2004 MTWCC 76 The treating physician's opinions are entitled to greater evidentiary weight than the opinions of a non-treating physician, at least where all other factors are equal.
Rice v. Liberty Northwest Insurance Corp. [11/04/04] 2004 MTWCC 73 Treating physician's opinions are more persuasive where he has more expertise in the area of medicine under consideration, where the opinions are more consistent with the claimant's history, and where the treatment prescribed by the treating physician is consistent with his opinions and in fact materially improves the claimant's condition.
Vercos v. Workers' Compensation Risk Retention Program [6/30/04] 2004 MTWCC 53 he sole medical opinion linking claimant's medical condition to her condition to her workplace is unpersuasive in light of persuasive, contrary opinions of a physician who conducted an independent occupational disease evaluation at the request of the Department of Labor and Industry and allergist who is a professor of medicine, has published numerous articles and textbook chapters on allergy, has been recognized by his peers with various awards, has served as an editor and reviewer for professional publications on allergy, and who is recognized by his peers as a leading authority in allergy, and where that opinion is further undermined by the refusal of the physician who treated the claimant at the time of her employment to link her disease to her employment.
Bain v. Liberty Mutual Fire Ins. [5/27/04] 2004 MTWCC 45 In assessing conflicting medical opinions, the Court takes into consideration, among other things, (1) whether the opining physician reviewed the claimant’s medical records before reaching his or her conclusions; (2) in cases where actual examination of a claimant is important, whether the physician physically examined the claimant; (3) the professed or obvious biases of the physician; (4) the specific areas of expertise of the physician; (5) peer reviewed articles authored by the physician, particularly in the subject area in which opinions are rendered; (6) the physician’s standing among peers in the specialized medical area involved in the opinions; (7) the physician’s specific analysis in the case; (8) the physician’s consideration and evaluation of other explanations for the claimant’s condition; (9) the accuracy of the facts upon which the physician’s opinions are based; and (10) medical and scientific literature brought to the Court’s attention which tends to support or contradict the physician’s conclusions.
McCauley v. Liberty N.W. [5/27/04] 2004 MTWCC 43 It has been a long standing rule that, while not conclusive, the treating physician's opinions are entitled to "greater evidentiary weight" than the testimony of non-treating physicians. Kloepfer v. Lumbermen's Mutual Casualty Co., 276 Mont. 495, 498, 916 P.2d 1310, 1312 (1996). At minimum, the rule requires this Court to defer to the treating physician where the evidence is evenly balanced. Key v. Liberty Northwest Ins. Co., 2001 MTWCC 53, 30.
McCauley v. Liberty N.W. [5/27/04] 2004 MTWCC 43 Facts concerning the claimant's history of symptoms are considered in evaluating medical opinions which are driven by that history.
Anderson v. Liberty NW Ins. Co. [4/19/04] 2004 MTWCC 37 The Court finds an IME physician's opinion that a claimant's thoracic condition is unrelated to her injury and does not require surgery, as well as his suggestion that there are "secondary gain issues" present, not only unpersuasive but incredible where the claimant's industrial injury caused multiple injuries objectively proven by imaging and surgery. She suffered from radiculopathies arising from both lumbar and cervical disk herniations and a torn rotator cuff. MRI imaging shows a herniated disk in the thoracic spine. In light of the serious injuries the claimant suffered, the IME physician's suggestion that the claimant's complaints are motivated by secondary gain borders on outrageous and diminishes his credibility.
Anderson v. Liberty NW Ins. Co. [4/19/04] 2004 MTWCC 37 In weighing the testimony of two neurosurgeons, the Court gives greater weight to the treating neurosurgeon even though he has been in practice for only four years following a six year neurosurgical residency and where, in contrast, the IME neurosurgeon devoted nine of the eleven years prior to his examining the claimant to dog sled racing, doing only IME exams when not racing.
Lockwood v. LIberty NW Ins. [3/2/04] 2004 MTWCC 21 The Court finds the opinions of an IME orthopedic physician persuasive as to MMI as to a work-related patellar dislocation suffered by claimant even though he was hired by the insurer. The condition is an orthopedic one and the contrary opinion is rendered by a treating physician who is a family practitioner. Moreover, the only prescription for treatment following the claimant's work-related injury was for physical therapy and the claimant chose not to undergo that therapy; and the claimant was asymptomatic during the week prior to the subsequent injury and her self-described symptoms during the month prior were that her knee "bothered her every now and then."
Thompson v. Liberty NW Ins. Corp. [2/25/04] 2004 MTWCC 16 Where claimant requested and obtained an independent medical examination by a physician who, unbeknownst to him, was married to his treating physician, and then objects to her opinions, his objection is immaterial where the only other opinions are those of his treating physician.
Mosca v. American Home Assurance [2/13/04] 2004 MTWCC 6 Where the only medical evidence was that claimant suffered an injury or occupational disease, the Court must choose between the two.
Mosca v. American Home Assurance [2/13/04] 2004 MTWCC 6 Where claimant's job involved hard labor and only upon retrospection did he remember events on a single day that might have caused his herniated disk, and where the evidence and medical opinions indicated his herniated disk arose on account of job activities but diverges as to whether his condition arose as a result of events on a single day or over a longer period of time, the Court finds evidence of a cumulative, multiple trauma over more than one day the more plausible explanation and finds that claimant suffered an occupational disease rather than an injury.
Pekus v. UEF/Yacos [1/12/04] 2004 MTWCC 2 The medical opinion relating claimant's condition to repetitive work is based on an erroneous history given by the claimant indicating she worked much harder and longer than in fact she did, and where, more importantly, the doctor agreed that a single traumatic fall could have caused the condition but assumed no such fall had taken place. The opinion is not persuasive where in fact there was a significant fall and the claimant's symptoms began immediately following the fall.
Cooper v. Chevron Corp. [3/05/03] 2003 MTWCC 16 Where an independent medical examiner testifies credibly that the claimant's recurrent herniated disk, which occurred eleven years after his first herniated disk, was caused by a subsequent, specific incident, and the facts provide support for that testimony, the Court is persuaded by the opinion where the only contrary opinion is a written one of a physician who did not mention the subsequent incident and may not have been aware of it.
Montana Contractor Compensation Fund v. Liberty Northwest Ins. Corp [2/19/03] 2003 MTWCC 10 A court cannot substitute its own judgment for the unrefuted medical judgments of medical practitioners. While it has been said that a finder of fact, including a judge sitting without a jury, is not bound by the opinion of a particular expert, that holding has generally been made in cases where there is conflicting expert testimony. E.g., Tefft v. State, 271 Mont. 82, 94, 894 P.2d 317, 325 (1995). To disregard unrefuted medical opinions, there must be some rational basis to do so.
Markovich v. Helmsman Management Services [1/31/03] 2003 MTWCC 4 Where the claimant's treating physician and an IME physician designated by the insurer disagree as to causation but the IME physician provides testimony which supports the proposition that the claimant's condition was caused by trauma, and the only trauma in evidence is the industrial accident, the treating physician's opinion concerning causation is persuasive.
Markovich v. Helmsman Management Services [1/31/03] 2003 MTWCC 4 Where the claimant's treating physician and an IME physician designated by an insurer disagree as to causation, and the IME physician is not shown to have greater expertise or experience in the matter under consideration, and there is no other reason to prefer the IME physician's opinion, the opinion of the treating physician is entitled to greater weight.
Burnside Lund v. St. Paul's [1/14/03] 2003 MTWCC 2 The testimony of a physician designated by the insurer to evaluate claimant is not persuasive even though other treating physicians did not testify where claimant was diagnosed by her long-time treating neurologist, as well as a neurosurgeon, as suffering from thoracic outlet syndrome and the testifying physician was skeptical of TOS as a valid medical diagnosis despite the condition being acknowledged in the medical text he consulted; he had never treated TOS; he indicated his subjective judgment that the claimant's complaints were exaggerated or false; and he was not in as good of a position to judge claimant's complaints as was her treating physician.
MacNeeley v. Everest National [6/12/02] 2002 MTWCC 35 Opinions of a treating orthopedic physician are more persuasive than that of an physician designated by the insurer where the treating physician has more expertise, both by way of specialization and actual years of practice, in the area of medicine involved in the case; his opinions are supported by those of an occupational disease specialist who conducted an independent medical panel examination at the request of the Department; and the emergence of claimant's symptoms was more consistent with his opinions than those of the insurer's physician.
Wilson v. Ace American Ins. [6/7/02] 2002 MTWCC 32 The opinions of a primary physician who is a general practitioner are not entitled to deference where other more expert physicians treated or evaluated the claimant's specific conditions and had more expertise with regard to the medical matters at issue.
Emineth v. Travelers [3/08/02] 2002 MTWCC 15 Where there are conflicting medical opinions regarding the need for neuropsychological testing, only one of the medical physicians testifies, and the testifying physician testifies that claimant's depression could explain claimant's symptoms and would make the further testing unreliable, and that her depression should therefore be treated, the testimony is persuasive where the recommendations for testing of the other physicians do not address the effect of depression on the validity of the further testing.
Lindeman v. Connecticut Indemnity Co. [1/17/02] 2002MTWCC 3 In an aggravation case, a comparison of claimant's pre-aggravation history of medical treatment and disability to her post-aggravation treatment and disability may be considered in assessing conflicting medical testimony as to causation and MMI.
Lindeman v. Connecticut Indemnity Co. [1/17/02] 2002MTWCC 3 In assessing a physician's opinions, the Court may consider testimony given by the physician which undermines his opinions.
Key v. Liberty NW Ins. [9/13/01] 2001 MTWCC 53 "As a general rule . . . the testimony of a treating physician is entitled to greater evidentiary weight," although it is not conclusive. Kloepfer v. Lumbermen's Mut. Cas. Co., 276 Mont. 495, 498, 916 P.2d 1310, 1312 (1996). At minimum, the treating physician is the tiebreaker where there is evenly balanced, conflicting medical testimony.
Munroe v. MT Electric & Telephone Pool [8/16/01] 2001 MTWCC 43 Where physician recommended surgery at three levels of claimant's spine and opined the surgery was related to a relatively minor 1997 industrial 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.
Schneider v. Liberty Mutual Ins. [4/20/01] 2001 MTWCC 14 Medical opinions which are based on subjective symptoms reported by a claimant who is not credible are not persuasive.
Schneider v. Liberty Mutual Ins. [4/20/01] 2001 MTWCC 14 Treating physicians' opinions are given less weight where the treating physician chose to believe claimant's patently questionable stories about his need for further narcotics, especially where the physician could have readily checked the stories with claimant's wife but failed to do so. The physician's trust in his patient was unwarranted and showed a lack of objectivity.
Delaney v. Hartford [3/1/01] 2001 MTWCC 10 The opinions of the treating physician are persuasive where the contrary opinions were rendered by an IME physician who did not examine claimant, who injected himself into the IME process after the physician who was charged with conducting the IME left the practice without rendering ultimate opinions, and who disregarded in toto the results and conclusions of an FCE without good reason. Under these circumstances, the IME physician's opinions are entitled to no weight.

Beyl v. Liberty Northwest Ins. Corp.[12/21/00] 2000 MTWCC 75 Testimony of an independent orthopedic surgeon that claimant continues to suffer from epicondylitis of his elbow and needs surgery is more persuasive than other medical evidence, including that of a physician specializing in occupational medicine, since (1) the surgeon has specific expertise in treatment of the condition under consideration; (2) the surgeon performed a truly independent medical evaluation, having been designated by the Montana Department of Labor and Industry to evaluate claimant for an occupational disease; (3) the surgeon was unwilling to compromise his independence by performing surgery and taking on the role of claimant's treating physician; (4) the claimant's continuing symptoms were validated by another orthopedic surgeon; and (5) the claimant attempted to return to gainful employment and, in fact, has attempted to work since his injury.

Hoff v. UEF and Laubach & Laubach [11/1/00] 2000 MTWCC 67 Treating physician's MMI opinion persuasive where subsequent treatment by other physicians does not materially improve the claimant's condition.

Hams v. Liberty Northwest Ins. Corp. [2/10/00] 2000 MTWCC 6 WCC WCC resolved conflict in opinions of two physicians to find claimant had not reached MMI because further medical treatment, on a more probable than not basis, would significantly improve claimant's depression and head, neck and myofascial pain. Significant to court's decision to credit one physician were facts that other doctor had not reviewed pre-injury medical records, was not the treating physician, did not address some causation issues, and agreed that a change in medications and elimination of caffeine and tobacco should improve claimant's symptoms.
McKay, Sr. v. City of Choteau [3/4/99] 1999 MTWCC 20 Police officer appealed Department of Labor hearing officer's decision he did not suffer from occupational disease resulting from alleged exposure to carbon monoxide in patrol car. Substantial evidence supports the hearing officer's determination, including the decision to credit the conclusions of the physician with specific expertise in carbon monoxide poisoning over those of other physicians.
Durham v. State Fund [12/1/98] 1998 MTWCC 87 Court was not persuaded by evidence of treating physician, a family practitioner, that claimant could not work due to fatigue and difficulty concentrating, where opinion was based largely on claimant's subjective reports, which Court found were exaggerated. More credence was given to evidence from other medical practitioners, who believed claimant capable of at least sedentary work, one of whom attributed his complaints to deconditioning.
McGillis v. State Fund [11/2/98] 1998 MTWCC 79 The parties' dispute over an impairment rating under the 1995 WCA was resolved in the insurer's favor based upon the Court's finding that the particular testimony of two chiropractors was not persuasive in comparison to the testimony provided by two medical doctors. The Court was not required to reach the question whether either chiropractor was statutorily authorized to render an opinion on impairment.
Wall v. National Union Fire Ins. Co. [2/24/98] 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.
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 [6/25/69] 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.