NO. 89-013 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

JERRY WACKER, 

plaintiff and Appellant, (. 

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PARK RURAL ELECTRIC CO-OPERATIVE, INC., -(n 0 

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APPEAL FROM: ~istrict Court of the Sixth Judicial Distrig, 

In and for the County of Park, 4 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Karl Rnuchel, Livingston, Montana 

For Respondent: 

Arnold Huppert, Jr.; Huppert & ~windlehurst, 

Livingston, Montana 

Filed: 

submitted on ~riefs: Aug. 17, 1989 

Decided: October 31, 1989 

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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 chiropractor 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's Guides to Evaluation of Permanent 

Impairment. 

Appellant Wacker was injured when a shock from the respondent'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 distinction 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 

timpairmentt rating of [the] Plaintiff, as derived by Dr. David A. 

Thiry . . . .It After receiving briefs and oral arguments on the 

issue, the court granted the respondent Is 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.