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Synek v. State Compensation Mutual Insurance Fund

Court of Workers Compensation of Montana

August 26, 1994

VIOLET M. SYNEK Appellant
v.
STATE COMPENSATION MUTUAL INSURANCE FUND Respondent for PROFESSIONAL NURSING PERSONNEL POOL Employer.

          ORDER ON APPEAL

          MIKE MCCARTER JUDGE

         This is 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:

         The 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.

         On January 28, 1994, Violet M. Synek (Synek) appealed the order on the ground that the decision was "erroneous in fact, procedure and law."

         Standard of Review

         Judicial review of the DLI order is authorized under section 39-71-204(3), MCA[1], 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 part:

(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 prejudiced because:
(a) The administrative findings, inferences, conclusions, or decisions are:
(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;

         The 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).

         Discussion

         At 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 1984.

         Since 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 consulting ...


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