VIOLET M. SYNEK Appellant
STATE COMPENSATION MUTUAL INSURANCE FUND Respondent for PROFESSIONAL NURSING PERSONNEL POOL Employer.
ORDER ON APPEAL
an appeal from the Findings of Fact, Conclusions of Law, and
Order entered by James L. Keil, hearing examiner for the
Montana Department of Labor and Industry (DLI), on January
14, 1994. The order determined:
State Compensation Insurance Fund is not liable for payment
of past or, in absence of specific authorization, future
chiropractic treatments rendered by Karlene Berish, D.C., to
the claimant, Violet Synek, from December of 1988 forward.
January 28, 1994, Violet M. Synek (Synek) appealed the order
on the ground that the decision was "erroneous in fact,
procedure and law."
review of the DLI order is authorized under section
39-71-204(3), MCA, which provides that any party who is
aggrieved by a department order "may appeal the dispute
to the workers' compensation judge." The standard of
review is set forth in the Montana Administrative Procedure
Act, section 2-4-704(2), MCA, which provides in relevant
(2) The court may not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact.
The court may affirm the decision of the agency or remand the
case for further proceedings. The court may reverse or modify
the decision if substantial rights of the appellant have been
(a) The administrative findings, inferences, conclusions, or
(ii) in excess of the statutory authority of the agency; . .
(v) clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion;
standard of review applicable to the hearing examiner's
findings of fact is whether the findings are "clearly
erroneous in view of the reliable, probative, and substantial
evidence on the whole record." State Compensation
Mutual Insurance Fund v. Lee Rost Logging, 252 Mont. 97,
102, 827 P.2d 85 (1992) (quoting section
2-4-704(2)(a)(v), MCA.) The standard for reviewing his
conclusions of law is whether the conclusions are correct.
Steer, Inc. v. Department of Revenue, 245 Mont. 470,
474-5, 803 P.2d 601 (1990).
issue is the State Fund's liability, if any, for
chiropractic treatments for Synek's low-back condition
which was caused or triggered by an October 10, 1980
industrial accident. Chiropractor J. L. Cromwell treated
Synek following her accident but dismissed her from his care
in January 1981. He thereafter resumed her treatment in
February 1983. Dr. Cromwell then sold his practice to Karlene
Berish, D.C., who has treated Synek continuously since June
June 1984 Dr. Berish has treated Synek on an average of
between one and one-half to three times per week. (Finding of
Fact No. 33.) The State Fund paid for the treatments until
December 1988, at which time it refused further payment to
Dr. Berish. Its refusal was based on the opinion of its