96-100

No. 96-100

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

EBI/ORION GROUP (Connecticut Indemnity),

Petitioner and Respondent,

v.

MICHAEL S. BLYTHE,

Respondent and Appellant.

APPEAL FROM: Workers' Compensation Court, State of Montana,

The Honorable Mike McCarter, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard R. Buley; Tipp & Buley, Missoula, Montana

For Respondent:

Charles E. McNeil; Garlington, Lohn & Robinson,

Missoula, Montana

Submitted on Briefs: November 21, 1996

Decided: January 7, 1997

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Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

 EBI/Orion is a workers' compensation insurer which insured

Community Medical Center (Community) in Missoula. The appellant,

Michael S. Blythe (Blythe), worked at Community as a certified

respiratory therapy technician. Blythe filed a claim seeking

compensation and medical benefits due to alleged mental injuries he

suffered while employed at Community. The Workers' Compensation

Court found that Blythe was not disabled. We reverse and remand. 

 Background

 On January 29, 1989, Blythe was stuck by a needle in a

arterial blood gas kit which had just been used to draw blood from

an AIDS infected patient. Since that time, Blythe has not tested

positive for the HIV virus and there appears to be no reasonable

prospect that he was infected by the needle. Nonetheless, Blythe

claimed that he suffered disabling psychosis and depression as a

result of the incident. He claimed that he has auditory and visual

hallucinations which have affected his ability to concentrate and

work. EBI/Orion accepted liability and paid temporary total

disability benefits under a reservation of rights. Six years

later, in 1995, EBI/Orion filed a petition with the Workers'

Compensation Court to determine the extent of Blythe's disability.

EBI/Orion argued that Blythe is malingering; that he is faking

mental illness in order to obtain monetary compensation on account

of the incident. 

 The issue presented to the Workers' Compensation Court was

whether Blythe's symptoms were real or fabricated. The Workers'

Compensation Court, based upon the testimony of two clinical

psychologists, Dr. Richard Rogers and Dr. David Faust, found that

the symptoms were fabricated. The issues presented to this Court

are as follows:

 1. Should the Workers' Compensation Court have ordered an

independent medical examination by a psychologist who is neither a

physician nor licensed to practice in the State of Montana? 

 2. Whether the Workers' Compensation Court's determination

that Blythe was feigning his illness is supported by substantial

credible evidence. 

 3. Did the Workers' Compensation Court err in not giving

more weight to the treating physician than to the opinions of two

psychologists; one of whom had never met Blythe and the other who

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had evaluated Blythe only once?

 Standard of Review

 We review Workers' Compensation Court's findings of fact to

determine whether the findings are supported by substantial

credible evidence. The Court reviews conclusions of law to

determine whether the lower court's interpretation of the law is

correct. Kloepfer v. Lumbermen's Mut. Cas. Co. (1996), 276 Mont.

495, 916 P.2d 1310.

 Discussion

 We first address the question of whether the Workers'

Compensation Court should have ordered an independent medical

examination by a psychologist who is neither a physician nor

licensed to practice in the State of Montana.

 Blythe's treating physician was William Stratford, M.D. Dr.

Stratford is a board certified psychiatrist, a board certified

disability consultant and is certified by the American Board of

Forensic Examiners. He is a fellow of the American College of

Forensic Psychiatry, a subspecialty which deals with the detection

of malingering. Dr. Stratford first started treating Blythe in

October of 1989 soon after the incident and continued seeing him

through 1995. 

 On May 24, 1995, EBI/Orion sent out notice of an independent

medical examination (IME) by a Dr. Rogers. Blythe objected to the

notice of IME on the following grounds: (1) the rules of the

Workers' Compensation Court contain no provision for an IME; (2)

Dr. Rogers was not previously listed as a witness; (3) an IME must

be performed by a medical doctor; and (4) any IME would be invalid

due to the effect of anti-psychotic medications Blythe was taking. 

 The Workers' Compensation Court issued an order addressing

each of Blythe's objections. The court determined that there was

no evidence to support Blythe's claim that his use of antipsychotic drugs would prevent a valid examination. The court then

ruled that, although the Workers' Compensation Court may not have

a rule allowing IMEs, there is statutory provision for an IME under

 39-71-605, MCA. As to the alleged lack of notice concerning the

IME, the court held that the issue had been addressed in a previous

scheduling order and that Blythe had received adequate notice. 

 Blythe's final objection to the IME was that Dr. Rogers was

not a physician licensed in the State of Montana. In addressing

this objection, the court held that, although 39-71-605, MCA,

refers to an IME by a "physician," other provisions of the Workers'

Compensation Act make it clear that the term "physician" is used in

a broad sense and does not refer only to medical doctors. Relying

on 1993 statutory definitions, the court noted that the term

"treating physician" encompasses not only M.D. physicians but also

chiropractors, physician assistants and dentists. Section 39-71-

116(30), MCA (1993). The court thus held: "I conclude that the

legislature intended the word 'physician' to refer generally to

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persons with special expertise in the treatment of physical and

psychological conditions, including Ph.D. clinical psychologists." 

After reviewing the law in effect at the time of trial, we hold

that the court's ruling on this point of law was in error. 

 EBI/Orion, relying on Buckman v. Montana Deaconess Hosp.

(1986), 224 Mont. 318, 730 P.2d 380, contends that the law in

effect at the time of the claimant's injury controls. Thus,

EBI/Orion argues that this January 1989 injury is controlled by the

1987 version of 39-71-605, MCA, which provides for IMEs by

"physicians" who have had "adequate and substantial experience in

the particular field of medicine concerned with the matters

presented by the dispute." Section 39-71-605(2), MCA (1987).

 Prior to 1993, a "physician" was defined as being a "'surgeon'

and in either case means one authorized by law to practice his

profession in this state." Section 39-71-116(17) MCA (1991).

 EBI/Orion's reliance of Buckman and thus the 1987 version of

the law, however, is misplaced. The Buckman rule only applies to

substantive rights of a claimant, such as the right to benefits

allowed at the time of injury. Buckman, 730 P.2d at 382 (citation

omitted). We have held that the statutes in effect at the time of

trial control when the subject is procedural rather than

substantive. State Compensation Ins. v. Sky Country (1989), 239

Mont. 376, 379, 780 P.2d 1135, 1137. A rule as to who is qualified

to conduct an IME is a procedural rather than a substantive rule. 

Thus, the law in effect as to IMEs as of the date of the trial is

controlling. 

 The question then becomes whether the 1993 version of 39-

71-605, MCA, allows for an IME to be conducted by a clinical

psychologist. Section 39-71-605(2), MCA (1993), provides for an

IME by a physician or panel of physicians. The 1987 specific

definition of "physician" was deleted by the legislative amendment

in 1993 and replaced with a definition of "treating physician" as

follows:

 (a) a physician licensed by the state of Montana

 under Title 37, chapter 3, and has admitting privileges

 to practice in one or more hospitals, if any, in the area

 where the physician is located; 

 (b) a chiropractor licensed by the state of Montana

 under Title 37, chapter 12; 

 (c) a physician assistant-certified licensed by the

 state of Montana under Title 37, chapter 20, if there is

 not a physician, as defined in subsection 30(a), in the

 area where the physician assistant-certified is located;

 (d) an osteopath licensed by the state of Montana

 under Title 37, chapter 5; or 

 (e) a dentist licensed by the state of Montana under

 Title 37, chapter 4. 

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Section 39-71-116(30), MCA (1993). 

 The above definition is broader than the generally accepted

definitions of "physician" as being a person lawfully engaged in

the practice of medicine. Black's Law Dictionary, 1147 (6th ed.

1990). "The term commonly refers to a doctor of medicine (MD) or

a doctor of osteopathy (DO)." The American Medical Association,

Encyclopedia of Medicine, 793 (1989). In the absence of a definition

of "physician," the Workers' Compensation Court looked to the

definition of "treating physician" which encompasses more than

medical doctors.

 The Workers' Compensation Court, in light of the above

definition, concluded that the term "'physician' is to be used in

a broad sense and does not refer only to medical doctors." We hold

that the court's interpretation is too liberal. Section 39-71-

105(4), MCA (1993), provides that "Title 39, chapters 71 and 72,

must be construed according to their terms and not liberally in

favor of any party." While we agree that "treating physician" is

not limited to medical doctors, we do not agree that even that

broad definition encompasses Dr. Rogers. 

 The legislature was very specific in defining which

professionals come within the definition of "treating physician." 

The professionals listed were not listed by way of example. 

Rather, they were set forth as an exhaustive list. The legislature

chose not to include psychologists on this list. The role of the

court in interpreting statutory language is simply to ascertain and

declare what is in terms or in substance contained therein, not to

insert what has been omitted or to omit what has been inserted. 

Section 1-2-101, MCA; Goyen v. City of Troy (1996), 276 Mont. 213,

221, 915 P.2d 824, 829. Furthermore, it must be noted that each of

the professionals that are listed in the definition, 39-71-

116(30) MCA (1993), must be licensed by the State of Montana. 

Thus, even if we were to assume, arguendo, that psychologists were

encompassed in the list of professionals, we would likewise have to

assume that, like the other listed professionals, a psychologist

would have to be licensed to practice in the State of Montana. As

used in Title 39, Chapter 71, MCA, the term "treating physician"

does not encompass the profession of clinical psychology, nor is

Dr. Rogers licensed to practice in the State of Montana. Clearly,

Dr. Rogers does not qualify as a "physician" ("treating" or

otherwise) for purposes of an IME examination.

 We hold that the Workers' Compensation Court erred in

requiring Blythe to submit to an IME by Dr. Rogers. The court

further erred in relying on Dr. Rogers' testimony, which was based

upon his examination of Blythe, to conclude that Blythe "has

fabricated and feigned mental illness in an attempt to advance his

legal claims." 

The Testimony of Dr. Faust:

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 Our holding that IMEs must, by statute, be conducted by

"physicians," not psychologists, does not affect the testimony of

Dr. Faust. Although Dr. Faust, like Dr. Rogers, is a clinical

psychologist, Dr. Faust did not conduct an IME and thus he was not

subject to the definition of "physician" as we have interpreted

that term in the context of 39-71-605 and -116(30), MCA (1993). 

Dr. Faust, a professor of psychology from the University of Rhode

Island, is a recognized authority on malingering. After reviewing

Blythe's psychological tests and listening to Blythe testify at

trial, he testified that, in his opinion, Blythe is malingering

mental disorders. 

 In the Workers' Compensation Court, Blythe argued that Dr.

Faust did not conduct a face-to-face examination and that his

testimony should not carry as much weight as the treating

physician, Dr. Stratford. Blythe now argues in his appellate reply

brief that since Dr. Faust is not a medical doctor, his testimony

is not "medical" evidence under 39-71-702(2), MCA (1987). Blythe

cites Kloepfer for the proposition that the Workers' Compensation

Court is only to resolve conflicts in "medical" testimony. He

argues that in his case there is no conflicting "medical" testimony

since the only experts for the insurer were psychologists who are

not "medical" doctors; that the treating physician, Dr. Stratford,

was the only medical doctor testifying. 

 Blythe, however, did not object to the testimony of Dr. Faust

nor did he ask the court to reconsider its decision which

explicitly relies on both the testimony of Dr. Rogers and Dr.

Faust. In the absence of any sort of objection to Dr. Faust's

testimony, the Workers' Compensation Court had no basis for

disregarding the testimony of the psychologist. Since Blythe

failed to challenge the testimony of Dr. Faust in the Workers'

Compensation Court or ask that court to reconsider its decision, he

cannot now raise the issue for the first time on appeal. 

Guardianship & Conserv. of Estate of Tennant (1986), 220 Mont. 78,

83, 714 P.2d 122, 125. Furthermore, the argument that Dr. Faust

and Dr. Rogers did not present "medical" testimony was raised for

the first time in Blythe's reply brief. Rule 23(c), M.R.App.P.,

requires that reply briefs be confined to new matter raised in the

respondent's brief. Thus, an appellant is prohibited from raising

new issues or theories in a reply brief. Loney v. Milodragovich,

Dale & Dye, P.C. (1995), 273 Mont. 506, 512, 905 P.2d 158, 162. 

For all of the above reasons, we reject Blythe's suggestion that

the Workers' Compensation Court erred in considering the testimony

of Dr. Faust. 

 Since the court's conclusion that Blythe was malingering was

based partly on testimony to which there was no objection and

partly on inadmissible testimony, a question remains as to what the

court's findings of fact and conclusions of law would have been

absent Dr. Rogers' IME. We will not substitute our judgment for

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that of the Workers' Compensation Court as to weight of evidence on

questions of fact. Mennis v. Anderson Steel Supply (1992), 255

Mont. 180, 184, 841 P.2d 528, 530. Accordingly, we remand this

matter to the Workers' Compensation Court for a reweighing of the

evidence as to malingering; contrasting the testimony of Blythe's

experts, including Dr. Stratford, with the testimony of EBI/Orion's

remaining expert, Dr. Faust. 

 Summary

 As to issue number one, we hold that the Workers' Compensation

Court should not have ordered an independent medical examination by

a psychologist who is neither a physician nor licensed to practice

in the State of Montana. On issue number two, we remand for new

findings and conclusions after discounting the IME performed by Dr.

Rogers as well as his trial testimony. In light of the remand on

issue number two, we need not address issue number three other than

to note that, as a general rule, we have held that 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, 916

P.2d at 1312. 

 Reversed and remanded for reconsideration consistent with our

holding herein. 

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

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