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Markovich v. Helmsman Management Services1/31/2003
e and Dr. Moseley are board certified, Dr. Sukin in orthopedic surgery (Sukin Dep. at 6) and Dr. Moseley in neurosurgery (Moseley Dep. at 7). No evidence has been presented which would demonstrate that orthopedic surgeons are generally more qualified regarding the issue at hand than are neurosurgeons, or vice versa. On the experience level, it is not clear how long Dr. Sukin has been in practice (at least 4½ years, Sukin Dep. at 5), but Dr. Moseley has been in practice since he completed his neurosurgical residency in 1979 (Moseley Dep. at 7). Dr. Moseley's practice includes spinal surgery. (Id.) I do not suggest that Dr. Sukin is less qualified than Dr. Moseley, but the evidence does not show that he is more qualified.
CONCLUSIONS OF LAW
This case is governed by the 1999 version of the Montana Workers' Compensation Act since that was the law in effect at the time of the claimant's industrial accident. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).
Claimant bears the burden of proving by a preponderance of the evidence that he is entitled to the benefits he seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).
Section 39-71-704(1)(a), MCA (1999), requires the insurer to furnish medical care only for "conditions resulting from the injury ." Compensation benefits are payable only for disability resulting from the industrial injury. §§ 39-71-701, -702, -703, MCA (1999). Thus, claimant must show that his low-back condition resulted from or was caused by his industrial accident.
The claimant has carried his burden of proof. While there are two conflicting medical opinions concerning causation, all other things being equal, the treating physician's opinion is entitled to deference.
"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. Key v. Liberty Northwest Ins., 2001 MTWCC 53, 30.
In this case, the insurer has failed to provide good reason to prefer the opinion of Dr. Sukin. He has not been shown to have more expertise or more reasoned opinions than Dr. Moseley. Indeed, Dr. Sukin's testimony concerning the relationship of trauma to the claimant's herniated disk provides support for the treating physician's opinion.
JUDGMENT
Claimant's low-back condition is related to and was caused by his September 22, 1999 industrial accident. Liberty is liable for both compensation and medical benefits for that condition.
Claimant is entitled to his costs and shall file his memorandum of costs in accordance with Court rules.
This JUDGMENT is certified as final for purposes of appeal.
Any party to this dispute may have twenty days in which to request a rehearing from these Findings Of Fact, Conclusions of Law and Judgment.
DATED in Helena, Montana, this 31st day of January, 2003.
Mike McCarter JUDGE
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