NO. 89-013
INTHE SUPREME COURT OF THE STATE OF MONTANA
1989

JERRY WACKER, plaintiff and Appellant, (. -VS- 'Z CD 0 Z CP PARK RURAL ELECTRIC CO-OPERATIVE, INC., 0 -(n 4LDefendant and Respondent. 

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## 00;" vr APPEAL FROM: ~istrict Courtof the SixthJudicial Distrig, In and for the Countyof Park, 4 The Honorable Byron Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
KarlRnuchel, Livingston, Montana
For Respondent:
Arnold Huppert, Jr.; Huppert & ~windlehurst, Livingston, Montana

Filed: submittedon ~riefs:Aug. 17, 1989
Decided: October 31, 1989 a

u 'Clerk

### Chief Justice J. A. Turnagedelivered the opinion of the Court. Priorto jurytrial inthispersonal injurycase,theDistrict Court for the Sixth Judicial District, Park County, granted the defendant's motion in liminepreventing theplaintiff's chiropractor from testifying as to theplaintiff's impairmentrating. The plaintiff appeals that decision. We affirm. Theappellant raisesthe single issue of whether theDistrict 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 thehamstring 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 respondentmoved in limine to prevent Dr. Thiry from testifyingastoWacker s impairmentrating,and the District Court granted themotion. 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 juryapportioned 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. Fellerv. Fox (Mont. 1989), 772 P.2d 842,844, 46 St.Rep. 694,696. The appellant presents a close question for review. Ontheonehand,Montana, likemost jurisdictions,hasadopted

a generous policy toward the use of expert witnesses. The testimonyandopinionsofqualifiedexpertsareadmissible whenever they will assistthe jury inunderstanding evidence which isbeyond 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 isan expert is a question of admissibility within the discretion of the trial court, but the degree of the expert's qualifications goes totheweight of theevidenceand is a question for the jury. Statev. Martin (1987),226Mont. 463, 466,736 P.2d 477, 479. On the other hand, this Court recentlyheld 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. TheAmerican 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 inmaking 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 theirpatientstinjuries. 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 thepresent case, the respondentmoved the District Court to "prohibit

# ...anyand all statements about or allusions to the timpairmentt rating of [the]Plaintiff,asderived by Dr. DavidA. 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 Wackertsimpairment 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. Affirmed


# .We concur:

JusticesJustice 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. Inweis 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 chiropractorsmay 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 (excludingworkers' 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.