March 15 2011
DA 10-0307
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 43
JOE WRIGHT,
Petitioner and Appellee,
v.
ACE AMERICAN INSURANCE CO.,
Respondent and Appellant.
APPEAL FROM: Workers’ Compensation Court
Cause No. WCC 2009-2210
Honorable James Jeremiah Shea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Charles G. Adams; Keller, Reynolds, Drake, Johnson, & Gillespie,
P.C.; Helena, Montana
For Appellee:
Patrick Sheehy; Halverson, Sheehy & Plath, P.C.; Billings, Montana
Submitted on Briefs: January 12, 2011
Decided: March 15, 2011
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Ace American Insurance Co. (Ace), appeals from the 2010 Workers’
Compensation Court (WCC) Order holding Ace liable for additional medical benefits and
allowing for the reinstatement of temporary total disability benefits for claimant Joseph
Wright (Wright). We address the following issues:
¶2 1. Whether the WCC erred as a matter of law in ordering additional medical
benefits.
¶3 2. Whether the WCC’s decision is supported by substantial credible
evidence.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In October 2004, while working for Interstate Brands, Inc., Wright was removing
pallets from a jammed conveyor belt when the belt started up and jerked his left arm.
Wright underwent shoulder surgery on January 12, 2005, to address his injury. Wright
testified at trial that since the surgery, his pain has worsened significantly to the point he
is unable to work.
¶5 Over the years since his injury, Wright has been examined and evaluated by
numerous physicians. Dr. Gregg Singer (Singer), who is board certified in physical
medicine and rehabilitation and a certified independent medical examiner, performed two
independent medical examinations (IMEs) on Wright in 2006. Singer agreed there were
sufficient objective findings to support a diagnosis of postsurgical chronic pain and
suspected depression as one contributing factor. On July 7, 2006, Singer opined that
Wright had reached Maximum Medical Improvement (MMI). He assigned Wright a six
percent whole person impairment rating and recommended medications for pain and
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depression. Singer restricted Wright permanently to light-duty work with no overhead
activity with his left shoulder.
¶6 Following Singer’s IMEs, Wright continued to be in pain with some increase in
symptoms. Wright first saw Dr. Jeffrey Hansen (Hansen) in December, 2006. Hansen is
a board certified orthopedic surgeon. Hansen resides and has admitting privileges in
Powell, Wyoming and Wright has been travelling to Powell to see him. Hansen’s
Montana license expired at the end of March, 2008—a fact he apparently did not realize
until his deposition in this case.
¶7 After ongoing evaluations from 2006 to 2009, Hansen concluded that Wright’s
industrial injury had resulted in the ongoing conditions affecting both Wright’s shoulder
and cervical spine. Hansen opined that two arthroscopic surgical repairs may provide
relief from Wright’s shoulder pain: a biceps tenodesis and completion of Wright’s partial
rotator cuff tear with rotator cuff repair. Regarding Wright’s spine, Hansen found
evidence of a degenerative disk disease of the cervical spine with nerve root irritation and
secondary neck pain and headache. He explained that while the cervical condition is
degenerative, the industrial accident and resulting shoulder injury were significantly
likely to have exacerbated the underlying condition. Hansen reported that a cervical
treatment plan must be developed to address Wright’s pain and also suggested that
neurosurgery or ongoing consultation with a neurologist may be helpful. Hansen
supported his findings with an MRI and the multiple evaluations he performed on Wright.
Although Hansen did not review any job analyses, he opined that Wright’s pain has
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become such a distraction that it may be difficult or impossible for Wright to complete
any work.
¶8 On April 4, 2008, during the time Wright was being seen by Hansen, Dr. Michael
Shabacker (Shabacker) assumed Wright’s care for pain management. Shabacker
specializes in chronic pain management. While he was not aware of any specific
treatment that would be curative of Wright’s condition, Shabacker testified he believes
Wright’s complaints of pain are real and he does not believe Wright is malingering or
lying about his pain. Shabacker found Wright at MMI on October 8, 2008, and reviewed
several job analyses in an attempt to find something that Wright could do “from a work
standpoint” in spite of his pain. On January 12, 2009, Shabacker noted some doubt as to
whether Wright was capable of returning to work. He testified in his deposition that
Wright’s return to work would be a “matter of commitment” to working, despite hurting
when he works. Shabacker recommended managing the pain as best they can with
medication.
¶9 On January 20, 2010, the WCC held a trial to determine Ace’s liability for the
treatments recommended by Hansen and Wright’s eligibility for continued disability
benefits. Depositions from Hansen, Singer, Shabacker, and Wright were presented. As
noted, Wright testified at trial, as did his wife, Bette, and vocational rehabilitation
counselor Travis Stortz. Stortz testified that Wright was qualified for alternative jobs and
whether he could perform them was “a matter of the pain consideration.” Stortz agreed
that if the court accepted Wright’s testimony, it would be “impossible” for him to return
to work. The WCC found Wright to be a credible witness.
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¶10 Following trial, the WCC issued detailed findings of fact and concluded that Ace
is liable for additional medical benefits in the form of the surgical procedure Hansen
proposed for Wright’s shoulder. In so holding, the WCC reasoned that although
Dr. Shabacker is well qualified in the field of chronic pain management, his opinions go
to the management of Wright’s pain rather than to the cause. Given Hansen’s expertise
and qualifications, the WCC gave more weight to his opinion as to the cause and
diagnosis of Wright’s continued pain.
¶11 In determining whether Ace is liable for treatment relating to Hansen’s cervical
diagnosis, the WCC acknowledged that Hansen is not a spine surgeon. The WCC
therefore ordered Wright to consult Dr. Rizzolo, a spine surgeon who previously had seen
Wright. If Dr. Rizzolo disagreed that further treatment of Wright’s cervical spine is
warranted, the WCC allowed Wright to seek the opinion of one more orthopedic
physician in Montana. The WCC determined that if neither physician agreed with
Hansen’s recommendation, Ace will not be liable for further cervical treatment. Having
decided that Wright may have a chance of improving his condition, the WCC concluded
that Wright has not reached MMI and is entitled to reinstatement of his temporary total
disability benefits.
¶12 Ace now appeals the WCC decision.
STANDARD OF REVIEW
¶13 This Court employs two standards of review for decisions of the WCC. The Court
reviews findings of fact to determine if they are supported by substantial, credible
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evidence, and we review conclusions of law to determine if they are correct. Hiett v.
Missoula Co. Pub. Schs., 2003 MT 213, ¶ 15, 317 Mont. 95, 75 P.3d 341.
¶14 In reviewing the WCC’s factual findings, “we do not resolve conflicts in the
evidence, and we do not consider whether evidence supports findings that are different
from those made by the WCC; rather, we confine our review to determining whether
substantial credible evidence supports the findings actually made by the WCC.” Quick v.
Mont. St. Fund, 2009 MT 162, ¶ 32, 350 Mont. 455, 208 P.3d 415 (citations omitted).
We defer to the WCC’s findings concerning credibility and the weight to be accorded to
the testimony of witnesses who testify in person at trial. Harrison v. Liberty N.W. Ins.
Corp., 2008 MT 102, ¶ 12, 342 Mont. 326, 181 P.3d 590. Because we are in as good a
position as the WCC to assess testimony presented at trial by way of deposition, we
review deposition testimony de novo. Id. at ¶ 13. “However, . . . even where we conduct
de novo review of deposition testimony, we are ultimately restricted to determining
whether substantial credible evidence supports the WCC’s findings.” Id.
¶15 We apply the 2003 version of the Montana Workers’ Compensation Act (Act)
because that was the law in effect at the time of Wright’s injury. Quick, ¶ 23.
DISCUSSION
¶16 On appeal, Ace argues that the WCC erred in relying on Hansen’s testimony and
diagnoses because he does not meet the statutory definition of a treating physician. Ace
contends Hansen cannot qualify as a treating physician under § 39-71-116(36)(a), MCA
(2003), because he is not currently licensed in Montana and his diagnoses and
recommended treatment, therefore, are not primary medical services as defined in § 39-
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71-116(26), MCA (2003). Ace also contends the WCC erred in relying on Hansen’s
opinion to the exclusion of the opinions of the other physicians who examined Wright
and its findings accordingly are not supported by the weight of the evidence.
¶17 1. Whether the WCC erred as a matter of law in ordering additional medical
benefits.
¶18 The Act allows for payment of “primary medical services” for conditions resulting
from the worker’s injury “for those periods as the nature of the injury or the process of
recovery requires.” Section 39-71-704(a), MCA (2003). “‘Primary medical services’
means treatment prescribed by a treating physician, for conditions resulting from the
injury, necessary for achieving medical stability.” Section 39-71-116(26), MCA (2003).
“Medical stability” is synonymous with “maximum medical healing” and means “a point
in the healing process when further material improvement would not be reasonably
expected from primary medical treatment.” Section 39-71-116(18), MCA (2003). A
claimaint is entitled to such “primary medical services” as are necessary to permit him or
her to sustain medical stability. Hiett, ¶ 19.
¶19 For purposes of determining “primary medical services,” “treating physician”
means a person who is primarily responsible for the treatment of a worker’s compensable
injury and is:
(a) a physician licensed by the state of Montana . . . and has admitting
privileges to practice in one or more hospitals, if any, in the area where the
physician is located;
. . .
(f) for a claimant residing out of state or upon approval of the insurer, a
treating physician defined in subsections (36)(a) through (36)(e) who is
licensed or certified in another state . . . .
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Section 39-71-116(36)(a)-(f), MCA (2003).
¶20 Ace contends that because Hansen is no longer licensed in Montana, his diagnoses
cannot be considered primary medical services, and thus, the WCC erred in considering
his opinion to determine Ace’s liability for additional medical benefits. We conclude that
the WCC correctly applied the law to the specific facts of this case.
¶21 Ace is incorrect in asserting that Hansen must be licensed in Montana in order to
qualify as a treating physician. Section 39-71-116(36)(f), MCA (2003), clearly provides
that physicians licensed or certified in another state may qualify as a treating physician
upon approval of the insurer. Although Wright did not seek Ace’s approval to see
Hansen, we have consistently held that a claimant’s failure to obtain the insurer’s
authorization does not automatically absolve an insurer of liability for treatment rendered
by unauthorized physicians. See Gamble v. Sears, 2007 MT 131, ¶ 58, 337 Mont. 354,
160 P.3d 537 (citing Garland v. Anaconda Co., 177 Mont. 240, 244, 581 P.2d 431, 433
(1978); Hutchison v. Gen. Host Corp., 178 Mont. 81, 92, 582 P.2d 1203, 1209 (1978);
Linton v. City of Great Falls, 230 Mont. 122, 132, 749 P.2d 55, 61 (1988)). Rather, the
WCC must consider the actual diagnosis of the worker’s condition to determine whether
the recommended treatment is appropriate. Id. at ¶¶ 57-59.
¶22 In Gamble and the cases cited therein, this Court was considering the insurer
authorization requirements of § 39-71-1101, MCA, when a worker changes treating
physicians. Id. at ¶ 50. We explained that it would be contrary to the purpose of the Act
to consider a claimant’s failure to meet the authorization requirement as a categorical bar
to insurer liability. Id. at ¶ 59. The analysis of authorization requirements in our earlier
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decisions provides persuasive guidance in interpreting § 39-71-116(36)(f), MCA (2003),
and its application to this case.
¶23 Unlike Gamble, Hutchison, and Linton, the WCC did not order Ace to pay Hansen
to provide the recommended treatment. Therefore, our holding in Garland is most on
point. In Garland, we affirmed the WCC’s decision not to compensate an unauthorized
doctor for treatment, but held that the WCC should have considered the doctor’s
diagnosis rather than simply treating Garland’s failure to comply with the authorization
rule as a categorical bar to coverage. Garland, 177 Mont. at 244, 581 P.2d at 433. In this
case, the WCC correctly considered Hansen’s opinion even though, at the time of trial,
Hansen could not be considered Wright’s treating physician within the meaning of the
statutory definition.
¶24 When construing a statute, our goal is to avoid absurd results and give effect to the
statute’s purpose. See § 1-2-102, MCA; Fliehler v. Uninsured Employers Fund, 2002
MT 125, ¶ 13, 310 Mont. 99, 48 P.3d 746; S.L.H v. State Compen. Mut. Ins. Fund, 2000
MT 362, ¶ 17, 303 Mont. 364, 15 P.3d 948; Hiett, ¶ 32. In interpreting a provision of the
Act, as with other statutes, “we must view it as a part of a whole statutory scheme and
construe it so as to forward the purpose of that scheme.” Gamble, ¶ 59. The Act
recognizes that “[a] worker’s removal from the work force due to a work-related injury or
disease has a negative impact on the worker, the worker’s family, the employer, and the
general public.” Section 39-71-105(2), MCA (2003). Thus, one objective of the Act is to
return an injured worker to work. Id. The WCC found that objective would more likely
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be achieved by Hansen’s recommended course of treatment than by continuing a course
of pain management that had not so far succeeded.
¶25 We recognize the Act’s companion goal of cost-effectiveness may be served by
limiting the number of physicians involved in an injured worker’s care. Hansen,
however, qualified as a treating physician when Wright initially saw him in 2006.
Hansen then formulated an opinion and diagnosis of Wright’s condition based on his
evaluations of Wright between 2006 and 2009. His treatment of Wright and ultimate
diagnoses are within the role of a treating physician contemplated by § 39-71-116(36),
MCA (2003). He was the only orthopedic specialist whose testimony was presented at
trial. It would be absurd and contrary to the purpose of the Act to find that the WCC
could not consider Hansen’s testimony merely because his Montana license expired prior
to trial.
¶26 2. Whether the WCC’s decision is supported by substantial credible
evidence.
¶27 Substantial credible evidence is that which a reasonable mind could accept as
adequate to support a conclusion. Harrison, ¶ 11 (citing Simms v. State Compen. Ins.
Fund, 2005 MT 175, ¶ 11, 327 Mont. 511, 116 P.3d 773). Evidence will be considered
substantial even if it is contradicted by other evidence, even if it is somewhat less than a
preponderance, and even if it is inherently weak. Id.
¶28 Ace contends that the WCC decision is not supported by substantial credible
evidence because the WCC improperly gave Hansen’s opinion more weight than the
opinion of Shabacker, Wright’s treating physician, and other Montana physicians who
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had seen Wright since his injury. However, we have consistently held that the treating
physician’s opinion, while often more persuasive, is not dispositive. Snyder v. S.F. Feed
& Grain, 230 Mont. 16, 27, 748 P.2d 924, 931 (1987); White v. Ford, Bacon, & Davis
Tex., Inc., 256 Mont. 9, 15, 843 P.2d 787, 791 (1992). The WCC appropriately
considered the persuasiveness of the various physicians’ opinions in its decision. For
example, the WCC stated in its Order:
I have no doubt that Dr. Shabacker is well-qualified in the field of chronic
pain management, and I find Dr. Shabacker’s opinions credible.
Dr. Shabacker’s opinions, however, go to the reality of Wright’s pain and
how to best manage it. Dr. Shabacker’s opinions do not go to the cause of
Wright’s pain and whether additional medical treatment could eliminate it.
On the other hand, Dr. Hansen’s expertise and qualifications cause me to
give his opinion as to the likely causes and potential treatment of Wright’s
shoulder condition greater weight. The issue before the Court is not an
issue of pain management - it is an orthopedic issue and whether orthopedic
surgery is indicated. I find the opinion of this orthopedic surgeon to be
more persuasive, even though he is not considered Wright’s treating
physician under Montana law.
¶29 We have held that the treating physician’s testimony is not always entitled to more
weight than that of other physicians. See Snyder, 230 Mont. at 27, 748 P.2d at 931;
White, 256 Mont. at 11, 843 P.2d at 791. In Snyder, for example, the treating physician
was not knowledgeable in the diagnosis offered by the non-treating physician. Id. at 28,
748 P.2d at 931. Similarly, in this case, while Shabacker was Wright’s treating
physician, he was a pain specialist, not an orthopedic specialist, and was not aware of any
special treatment that would help Wright.
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¶30 Ace directs the Court to our holding in Nielson v. Mont. St. Fund, 2003 MT 95,
¶ 49, 315 Mont. 194, 69 P.3d 1136, which overturned the WCC for lack of substantial
credible evidence. However, the WCC in Nielson relied on a physician whose testimony
was inconsistent with his own earlier representations and lacked additional information to
substantiate his change of opinion. Nielson, ¶ 47. Unlike the physician’s testimony in
Nielson, Hansen’s opinion is consistent and based on his expertise as an orthopedic
surgeon and his own numerous evaluations of Wright. The WCC clearly justified giving
more weight to Hansen’s opinion. The WCC is in a better position than is this Court to
resolve any conflicts in the evidence.
¶31 After de novo review of the deposition testimony, and having concluded that the
WCC properly considered Hansen’s testimony, we find that the decision of the WCC is
supported by substantial credible evidence.
CONCLUSION
¶32 We find no error in the WCC’s decision that Wright is entitled to additional
medical benefits and to reinstatement of his temporary total disability benefits. The
judgment of the WCC is affirmed.
/S/ BETH BAKER
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
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/S/ BRIAN MORRIS
/S/ JIM RICE
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