NO. 89-013
I N THE SUPREME COURT O F THE STATE O F MONTANA
1989
J E R R Y WACKER,
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A P P E A L FROM: ~ i s t r i c t o u r t of t h e S i x t h J u d i c i a l D i s t r i g ,
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I n and f o r t h e C o u n t y of P a r k , 4
T h e H o n o r a b l e B y r o n R o b b , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Karl Rnuchel, Livingston, Montana
For R e s p o n d e n t :
A r n o l d H u p p e r t , Jr.; H u p p e r t & ~ w i n d l e h u r s t ,
Livingston, Montana
s u b m i t t e d on ~ r i e f s : A u g . 17, 1989
Decided: O c t o b e r 31, 1989
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Filed:
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'Clerk
Chief Justice J. A. Turnage delivered the opinion of the Court.
Prior to jury trial in this personal injury case, the District
Court for the Sixth Judicial District, Park County, granted the
defendant's motion in limine preventing the plaintiff's chiroprac-
tor from testifying as to the plaintiff's impairment rating. The
plaintiff appeals that decision. We affirm.
The appellant raises the single issue of whether the District
Court erred in not allowing a licensed chiropractor to give his
opinion of the plaintiff's degree of impairment based on the
American Medical ~ssociation'sGuides to Evaluation of Permanent
Impairment.
Appellant Wacker was injured when a shock from the respon-
dent's 7.2 kilo-volt electrical power line knocked Wacker from the
crest of a ranch outbuilding on which he was laying tin roofing.
His injuries included a concussion, a compression fracture of the
lumbar vertebra, and electrical burns on his upper right arm and
the hamstring area of his right leg.
Following initial treatment, physical therapy and skin graft
surgery, Dr. Thiry, a licensed chiropractor, continued to treat
Wacker for back problems. Dr. Thiry reported that, based on the
American Medical Association's Guides to Evaluation of Permanent
Impairment, the back injury left Wacker with a thirty percent
permanent impairment. The respondent moved in limine to prevent
Dr. Thiry from testifying as to Wacker s impairment rating, and the
District Court granted the motion.
During trial, Wacker testified several times that he was
capable of doing twenty-five percent less work following his
injury. Dr. Thiry testified in detail as to Wacker's range of
motion limitations without offering his opinion as to Wacker's
overall percentage of impairment. The respondent offered expert
testimony that Wacker would probably recover fully. The jury
apportioned fifty percent of the negligence to each party and
determined total damages at $14,759.92.
The authority to grant a motion in limine rests within the
sound discretion of the trial court and its conclusion will not be
reversed unless the court has manifestly abused that discretion.
Feller v. Fox (Mont. 1989), 772 P.2d 842, 844, 46 St.Rep. 694, 696.
The appellant presents a close question for review.
On the one hand, Montana, like most jurisdictions, has adopted
a generous policy toward the use of expert witnesses. The
testimony and opinions of qualified experts are admissible whenever
they will assist the jury in understanding evidence which is beyond
the jury's common experience. Rule 702, M.R.Evid.; State v.
Campbell (1965), 146 Mont. 251, 258, 405 P.2d 978, 983. Whether
the witness is an expert is a question of admissibility within the
discretion of the trial court, but the degree of the expert's
qualifications goes to the weight of the evidence and is a question
for the jury. State v. Martin (1987), 226 Mont. 463, 466, 736 P.2d
477, 479.
On the other hand, this Court recently held that in workers'
compensation cases the legislature intended to restrict opinions
on impairment ratings to licensed medical physicians. Weis v.
Division of Workers1 Compensation (Mont. 1988), 755 P.2d 1385,
1386, 45 St.Rep. 1004, 1006. The question before us today is
whether in civil cases opinions of impairment ratings should be
similarly restricted.
We believe that, for the present purposes, the difference
between workers' compensation cases and civil cases is a distinc-
tion without a difference. Public policy suggests that in both
contexts only qualified physicians should be allowed to render
opinions on impairment ratings based upon the American Medical
Association's Guides to Evaluation of Permanent Impairment. The
American Medical Association formulated the Guides for the use of
licensed medical physicians. Restricting their use to licensed
medical physicians would insure reliable, authoritative opinions
on which juries could depend in making their determinations.
This is not to say that chiropractors should not testify as
to their patientst injuries, or that they should never use
percentages in describing their patientst injuries. The jury can
decide how much weight to give such testimony. Chiropractors
should not, however, add unwarranted weight to their opinions by
adopting the trappings of licensed medical physicians.
In the present case, the respondent moved the District Court
to "prohibit .. . any and all statements about or allusions to the
timpairmenttrating of [the] Plaintiff, as derived by Dr. David A.
Thiry . .. .It After receiving briefs and oral arguments on the
issue, the court granted the respondentIs motion. Dr. Thiry was
properly barred from giving his opinion as to Wackerts impairment
rating. He could have given his opinion--as Wacker himself did--
that the appellant could perform twenty-five percent less work
after the injury. We hold that the District Court did not abuse
its discretion.
Aff irmed .
We concur:
Justices
Justice John C. Sheehy, dissenting:
The majority opinion is a far too stringent limitation
on the competence of a chiropractor to testify within the
area of his expertise. Moreover, the majority opinion is
aberrent from the weight of authority on the subject.
In weis v. ~ivision of Workers' compensation (1988), -
Mont . , 755 P.2d 1385, this Court inferred that because §§
39-71-701, -702, and -703, MCA, required in workers'
compensation cases that disability be supported a
"preponderance of the medical evidence," the use of the term
"medical" meant that only licensed physicians could testify
in workers' compensation cases as to impairment ratings.
From that inference, the majority now infer that the
prohibition extends to civil cases as well as ~vrorkers'
compensation cases. Thus we have a house of cards built on
an inference upon an inference, which should not stand.
Chiropractors practice in Montana under licensing
statutes which define "chiropractic" as a system of specific
adjustment or manipulation of the articulations and tissues
of the body, particularly of the spinal column, and "includes
the use of recognized diagnostic treatment methods as taught
in chiropractic colleges but does not include surgery or the
prescription or use of drugs." section 37-12-101, MCA.
Determining the rate of impairment is a form of diagnosis.
Further, under our statutes, "licensed chiropractors may
diagnose, palpate and treat the human body by the application
of manipulative, manual, mechanical, and dietetic methods,
including chiropractic physiotherapy, the use of supportive
appliances, analytical instruments, and diagnostic x-ray"
following guidelines from state and federal regulatory
agencies. section 37-12-104(2), MCA.
It is a general rule in this country that a chiropractor
may testify concerning matters within the scope of his
profession. 52 ALR2d 1380, 1384; Chalupa v. Ind. Workers'
Comrn. (Ariz. 1973), 509 P.2d 610; Taylor v. Maxwell an.
1966), 419 P.2d 822.
In Line v. Nourine (1974), 298 inn. 269, 215 N.W.2d 52,
it was held that a chiropractor was competent to express
expert opinion based on reasonable chiropractic certainty
regarding probable effects, permanence and future medical
requirements of plaintiff ' s back injury, where proper
foundation was laid and the matter was within the scope of
his profession and the practice of chiropractic.
In this case, the majority, in holding that a
chiropractor may not testify as to the rate of impairment
based on AMA charts goes too far. Once a proper foundation
is laid, a chiropractor should be held competent to testify
in civil cases (excluding workers' compensation cases) within
the realm of his knowledge and training as licensed by the
state. Chalupa, supra.
It perverts justice to let a verdict stand where the
jury was foreclosed from hearing testimony about plaintiff's
impairment from the licensed health provider who principally
treated the plaintiff. I would reverse and grant a new trial
where the witness would be permitted to testify within the
area of his expertise, upon proper foundation laid.
Mr. Justice William E. Hunt, Sr..
I concur in the dissent of Justice Sheehy.