In May 2016, Dr. Helmer, still treating Mr. Murphy regularly, opined that Mr. Murphy's symptoms, to a reasonable degree of medical certainty, were "consistent these past 18 years" and were "a direct result of his 1991 injury and [its] sequelae." Dr. Helmer recommended continued chiropractic care, a frequent-lifting restriction of 10 to 15 pounds, and an occasional-lifting restriction of 30 to 40 pounds.

Based on Dr. Helmer's opinion, Mr. Murphy presented claims to WestRock Company, Smurfit-Stone's successor, for permanent partial disability and vocational rehabilitation benefits.

WestRock denied Mr. Murphy's claim on the ground it was premised on the medical determination of a chiropractor, rather than a physician, as required by the 1991 workers' compensation statutes.

Mr. Murphy filed a petition in the workers' compensation court.

WestRock obtained an independent medical examination ("IME") from Emily Heid, an orthopedic surgeon, who opined that, to a reasonable medical probability, Mr. Murphy's physical restrictions were unrelated to his 1991 occupational injury.

WestRock moved for summary judgment, arguing that the 1991 statutes required a "physician" to determine medical restrictions, that the 1991 definition of "physician" did not include chiropractors, and, therefore, that Dr. Heid's opinion was the only permissible determination in the record and legally unrebutted.

Mr. Murphy responded that the definition of "physician" had been revised in 1993 to include chiropractors, and argued that the new definition should be retroactively applied, citing the decision by the Montana Supreme Court in EBI/Orion Grp. v. Blythe, 931 P.2d 38 (Mont. 1997), to permit consideration of Dr. Helmer's opinion, which would create a dispute of material fact regarding the causation of his injuries and render summary judgment improper.

In Blythe, the Montana Supreme Court addressed whether psychologists were authorized to perform an IME under the governing workers' compensation statutes. The court held that the definition of "treating physician" was a procedural provision, and that "the statutes in effect at the time of trial" controlled when the subject was procedural rather than substantive. Consequently, the court retroactively applied the 1993 definition of "treating physician" to the 1989 injury at issue in Blythe.

The workers' compensation court reasoned, however, that Blythe could not be reconciled with the Montana Supreme Court's later holding in Fleming v. Int'l Paper Co., 194 P.3d 77 (Mont. 2008), in which the court declared that there was "no exception" to the rule that procedural statutes "in effect on the date of the accident or injury control in workers' compensation cases."

The workers' compensation court concluded that it was bound to follow Fleming and, therefore, that Mr. Murphy's claims were governed by the 1991 statutes, rendering Dr. Helmer's opinion inadmissible and Dr. Heid's opinion uncontested.

The workers' compensation court granted summary judgment to WestRock, and the dispute reached the Montana Supreme Court.

There, Mr. Murphy argued that, pursuant to Blythe, the definition of "physician" was a procedural provision, and thus the subsequent statutory inclusion of chiropractors within the definition of physician should be retroactively applied to his 1991 case to permit the use of Dr. Helmer's opinion. He argued that the Montana Supreme Court's broad statement in Fleming to the effect that there was "no exception" to the application of procedural workers' compensation statutes in effect at the time of injury was incorrect as a matter of legal precedent, and also obiter dictum, unnecessary to the specific holding in Fleming.

For its part, WestRock argued that Blythe had been impliedly overruled by Fleming, where the Montana Supreme Court rejected retroactive application of a 2003 workers' compensation statute of limitation, reasoning that "[f]or almost 75 years, this Court has held that the statutes in effect on the date of the accident or injury control in workers' compensation cases. . . . We made no exception in these cases for statutes of limitation or other procedural statutes, and we decline to do so now." WestRock argued, therefore, that, in the context of workers' compensation, the Montana Supreme Court had held that statutes were not retroactively applied and, thus, the definition of physician in effect at the time of Mr. Murphy's injury should control.

The Montana Supreme Court's Decision

The Montana Supreme Court reversed, holding that the workers' compensation court erred by holding that Dr. Helmer could not make a medical determination regarding Mr. Murphy's 1991 work-related injury.

In its decision, the court stated that it "must conclude" that its statement in Fleming to the effect that it had "made no exception" to the general rule applying workers' compensation statutes in effect on the date of the injury "was incorrect." The court said that, "[o]bviously," it had done so in Blythe regarding the very statute at issue in Mr. Murphy's case, and it noted that it had done so in another case as well.

The court then declared that its statements in Fleming were "overbroad" and that Fleming's analysis and reasoning "should have been limited to the narrow issue before us there, concerning which statute of limitation applied to the claim."

The court then held that Blythe's holding was correct, and controlled the outcome in Mr. Murphy's appeal. Pursuant to Blythe, the definition of physician to be applied to Mr. Murphy's claim was the one provided in "the statutes in effect at the time of trial," the court concluded.

The case is Murphy v. WestRock Co., No. DA 17-0172 (Mont. March 20, 2018). Attorneys involved include: For Appellant: Rex L. Palmer, Attorneys Inc., P.C.; Missoula, Montana; For Appellee: Larry W. Jones, Wills Law Firm, P.C.; Missoula, Montana.