                                 STATE OF MINNESOTA

                                   IN SUPREME COURT

                                       A16-0629


Workers’ Compensation Court of Appeals                                  Lillehaug, J.


Ellen Gianotti,

                    Respondent,

vs.                                                           Filed: February 8, 2017
                                                           Office of Appellate Courts
Independent School District 152 and
RAM Mutual Insurance Co.,

                    Relators,

and

Sanford Health, Essentia Health Systems,
Injured Workers Pharmacy, and Onword Therapy,

                    Intervenors.


                                ________________________

James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota, for
respondent.

Howard Y. Held, William R. Moody, Fitch, Johnson, Larson & Held, P.A., Minneapolis,
Minnesota, for relators.

                                ________________________




                                           1
                                      SYLLABUS

       1.      The Workers’ Compensation Court of Appeals (WCCA) erred when it ruled

on the forfeited issue of whether a psychologist was competent to provide an expert opinion.

       2.      The WCCA erred when it reversed the compensation judge’s determination

that there was an adequate factual foundation for the psychologist’s opinion.

       3.      The WCCA erred when it reversed the compensation judge’s factual finding

that respondent did not suffer a concussion and post-concussive syndrome.

       Reversed.

                                        OPINION

LILLEHAUG, Justice.

       On October 7, 2014, respondent Ellen Gianotti was working as a school bus monitor

for relator Independent School District 152 when the bus in which she was riding, traveling

at 15 miles per hour, unexpectedly braked. The sudden stop caused Gianotti to fall, strike

the left side of her head on the bus’s front console, and land on her left arm.

       Gianotti was taken to the hospital, where she reported pain in her head and left arm,

but said she did not lose consciousness from the fall. A CT scan and X-rays were negative

for symptoms of a concussion, and a medical report from Dr. Crider 1 said she had no such

symptoms. Gianotti was diagnosed with a head injury and left arm contusion.



1
      All physicians identified in this opinion are doctors of medicine (M.D.s) unless
otherwise noted.


                                               2
       Thereafter, Gianotti saw a series of health providers. We summarize those visits as

follows:

   • On October 8, 2014, Gianotti saw a second doctor, Dr. Kuhlmann, who noted that

she “had no symptoms of concussion” and that she was alert and oriented.

   • On October 9, 2014, Gianotti went to a third doctor, Dr. Sampson, with complaints

of headaches, confusion, and trouble finding words. A CT scan was negative, but the

medical notes stated that Gianotti’s self-reported symptoms were “most consistent with post

concussion syndrome.”

   • On October 14, 2014, Gianotti saw a fourth doctor, Dr. Sheldon, who wrote that

Gianotti had post-concussive symptoms, and arranged for her to have a neuropsychological

assessment.

   • On October 23, 2014, Gianotti reported to a health clinic with complaints of dark

nasal discharge for five days. Gianotti was unable to replicate the dark discharge at the clinic.

   • The same day, Gianotti went to see Dr. Hauge, Ph.D., L.P. (Licensed Psychologist),

for her neuropsychological assessment. For the first time, she reported “ ‘islands’ of

memory” on the day of the injury. Dr. Hauge conducted a limited battery of tests and noted

that Gianotti “had an apparent concussive injury” and was “experiencing multiple symptoms

of somatic, cognitive, and emotional-related change” since the injury. Dr. Hauge diagnosed

Gianotti with a concussion.




                                               3
    • On December 15, 2014, Gianotti saw Dr. Hauge, who referred her for “psychological

intervention because of significant emotional distress” since the injury. On December 29,

2014, Gianotti saw Dr. Hauge again, who recommended a Zoloft prescription, which Dr.

Sheldon issued the next day.

    • On February 16, 2015, Gianotti was seen by Dr. Stone, Psy.D., upon referral by Dr.

Hauge, for anxiety therapy. Gianotti reported she had suffered four panic attacks over a

one-week period and depression secondary to those attacks. She continued the therapy

sessions in the ensuing months.

    • On March 28, 2015, Gianotti saw Dr. Paul Arbisi, Ph.D., L.P., 2 for an independent

psychological examination at relators’ request. Dr. Arbisi reviewed Gianotti’s medical

records dating back to 2007, including pre-injury records that were not reviewed by the

treating physicians. Those records revealed that Gianotti had taken Zoloft since at least 2007,

and Xanax since at least 2009, facts which Gianotti had not fully disclosed to relators and

the physicians she saw for the bus injuries. Dr. Arbisi then administered the Minnesota

Multiphasic Personality Inventory-2 test to Gianotti, which included a broader battery of

tests than those conducted by Dr. Hauge. Dr. Arbisi concluded that Gianotti answered

questions “in a manner that was directed towards deliberately presenting herself as an

admirable individual who reports suffering from extreme and non-credible psychiatric



2
      Dr. Arbisi was also certified by the American Board of Assessment Psychology and
the American Board of Professional Psychology. He was not an M.D.


                                              4
symptoms, as well as non-credible memory and cognitive problems.” Ultimately, Dr. Arbisi

concluded that Gianotti had not suffered a concussion and post-concussive syndrome. He

wrote a report to that effect.

    • On April 23, 2015, Dr. Carlson conducted an independent orthopedic medical

examination of Gianotti at relators’ request. Dr. Carlson focused on Gianotti’s arm injury

and did not conduct any tests relating to a concussion, but noted—apparently solely from

speaking with Gianotti and reviewing her medical records—that he believed Gianotti “had a

mild post-concussive syndrome, which has resolved.”

       Taking issue with Dr. Arbisi’s report, Drs. Sheldon and Hauge wrote to Gianotti’s

attorney, stating that Gianotti’s symptoms were consistent with a traumatic brain injury and

post-concussive syndrome. Dr. Arbisi then submitted a supplemental report based on

post-injury psychiatric records he did not originally review, stating that the new information

did not change his opinions from the first report.

       On May 5, 2015, Gianotti filed a medical request with the workers’ compensation

division. Gianotti sought coverage for various treatments she was receiving for her injuries,

including treatment for emotional and psychological conditions that allegedly developed

from her head injury. Relators then filed a Petition to Discontinue Benefits. 3 The two filings

were consolidated for a hearing before a compensation judge.



3
       On October 20, 2014, the school district’s insurer, RAM Mutual Insurance Company,
admitted Gianotti’s injuries and paid benefits including temporary total disability.


                                              5
       Following the hearing, by Findings and Order, the compensation judge denied

Gianotti’s request for coverage of emotional and psychological conditions, finding that

Gianotti had not suffered a concussion and post-concussive syndrome. The compensation

judge relied heavily on the opinion of Dr. Arbisi.

       Gianotti appealed specific portions of the compensation judge’s decision to the

WCCA. Gianotti’s notice of appeal specifically raised the issue of “[w]hether the admitted

work injury resulted in a concussion or other brain injury” and the compensation judge’s

“holding that this admitted head injury did not result in concussion or other brain injury.”

       In Gianotti’s briefs to the WCCA, she argued that the opinions of her treating

physicians outweighed Dr. Arbisi’s opinion. She also argued that Dr. Arbisi’s opinion lacked

factual foundation, citing Minnesota Rule of Evidence 702, because he had not reviewed a

video of the accident and some of Gianotti’s post-injury psychiatric records.

       At oral argument before the WCCA, the panel sua sponte asked the parties whether

Dr. Arbisi was competent to provide an expert opinion, given that he was a psychologist who

was not an M.D. Both parties agreed he was competent. 4

       The WCCA reversed the compensation judge’s finding that Gianotti did not suffer a

concussion and post-concussive syndrome, and vacated the denial of coverage of the

emotional and psychological conditions. The WCCA reasoned that: (1) Dr. Arbisi was not

competent as an expert; (2) he lacked factual foundation for his opinion because he did not


4
       The oral argument was not transcribed, but the parties agree on what was said.


                                              6
review the video; and (3) all the other evidence indicated that Gianotti suffered from

post-concussive syndrome. Gianotti v. Indep. Sch. Dist. 152, No. WC15-5868, 2016 WL

1637254 (Minn. WCCA Mar. 24, 2016).

       Relators petitioned this court for a writ of certiorari. We reverse.

                                              I.

       We first address whether the WCCA ruled on a forfeited issue, namely Dr. Arbisi’s

competence to render an opinion regarding Gianotti’s injuries.                “[T]he Workers’

Compensation Court of Appeals’ review is limited to the issues raised by the parties in the

notice of appeal.” Minn. Stat. § 176.421, subd. 6 (2016); see also Bradford v. Bureau of

Engraving, 459 N.W.2d 697, 698 (Minn. 1990); Ruether v. State, 455 N.W.2d 475, 479

(Minn. 1990). Minnesota Statutes § 176.421, subdivision 3, provides that a notice of appeal

must specify “the particular finding of fact or conclusion of law which the appellant claims

was unsupported by substantial evidence in view of the entire record as submitted” and “any

other ground upon which the appeal is taken.”

       Gianotti’s notice of appeal did not raise the issue of Dr. Arbisi’s competence.

Instead, Gianotti raised an entirely separate issue: whether she had suffered “a concussion

or other brain injury” from her fall.

       Gianotti’s notice of appeal specifically referenced paragraphs 30, 31, and 33 of the

compensation judge’s findings, none of which addressed the issue of Dr. Arbisi’s

competence. Paragraph 30 stated that the compensation judge agreed with Dr. Arbisi that



                                              7
Gianotti’s head injury was mild. That paragraph also noted that Gianotti’s treating

physicians appeared to be basing their conclusions almost entirely on her self-reported

symptoms. Paragraph 31 found that Gianotti did not require psychological treatment as a

result of the bus incident. That paragraph also found that the costs of the CT scans should

be covered by relators. Paragraph 33 found that relators were entitled to discontinue

temporary total disability benefits as of the date of the hearing before the compensation

judge. None of these paragraphs addressed Dr. Arbisi’s competence. Notably, paragraph

28 discussed Dr. Arbisi’s credentials, his independent examination of Gianotti, and his

conclusions. The compensation judge expressly adopted Dr. Arbisi’s opinion in paragraph

29. Gianotti cited neither paragraph in her notice of appeal.

       Gianotti’s notice of appeal also referenced Orders 1 and 5 of the compensation

judge’s decision. Order 1 stated that relators could discontinue temporary total disability

benefits as of the date of the hearing. Order 5 stated that Gianotti’s “claims for payment

of treatment expenses for emotional and/or psychological conditions are denied and

dismissed,” and went on to specify which treatments were denied. Neither order involved

Dr. Arbisi’s competence.

       Gianotti’s briefs to the WCCA similarly failed to raise the issue of Dr. Arbisi’s

competence.    Gianotti primarily argued that the opinions of her treating physicians

outweighed Dr. Arbisi’s opinion. She did not argue that Dr. Arbisi’s lack of an M.D.

degree rendered him incompetent to provide an expert opinion in the case.



                                             8
       Gianotti also argued to the WCCA that, because Dr. Arbisi reviewed neither the

video of the incident nor certain post-injury psychiatric records, his opinion lacked factual

foundation under Minnesota Rule of Evidence 702. Gianotti now argues that her citation

of Rule 702 on this entirely different issue opened the door for the WCCA to conclude that

Dr. Arbisi was not competent. But whether an issue has been forfeited depends on the

substance of the issue, not on the rule cited. See DeCook v. Olmsted Med. Ctr., Inc., 875

N.W.2d 263, 270 n.6 (Minn. 2016) (analyzing whether the issue presented is “different in

kind” to determine whether it was forfeited (quoting Jacobson v. $55,900 in U.S. Currency,

728 N.W.2d 510, 522-23 (Minn. 2007))). Here the two issues are entirely different in kind;

one is whether Dr. Arbisi generally had the proper expert credentials and education,

whereas the other is whether he was sufficiently familiar with the facts of the case.

       In sum, because Gianotti’s notice of appeal and briefs to the WCCA failed to raise

the issue of whether Dr. Arbisi was competent to provide an expert opinion, Gianotti

forfeited the issue. The WCCA accordingly erred when it raised and ruled on an issue that

was not before it.

                                             II.

       We next address an issue that was not forfeited: whether the WCCA erred when it

held that Dr. Arbisi lacked the necessary factual foundation to provide an expert opinion

on whether Gianotti had suffered a concussion and post-concussive syndrome. The law on

whether an expert’s opinion has the proper foundation is well settled. The facts upon which



                                             9
an expert relies for an opinion must be supported by the evidence. Ruether, 455 N.W.2d

at 478. An expert need not be provided with every possible fact, but must have enough

facts to form a reasonable opinion that is not based on speculation or conjecture. See

Wenner v. Gulf Oil Corp., 264 N.W.2d 374, 381 (Minn. 1978). The adequacy of foundation

for an expert opinion is a decision within the discretion of the trial judge, subject to review

for abuse of discretion. See Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760-61

(Minn. 1998).

       In this case, the WCCA reversed the compensation judge’s ruling for two reasons.

First, the WCCA stated that Dr. Arbisi lacked an adequate factual foundation for his

opinion because he did not review the video of the injury. Second, the WCCA took issue

with “Dr. Arbisi’s contention that the employee denied altered consciousness until October

23, 2014.”

       The WCCA’s decision that not viewing the video was somehow dispositive on the

adequacy of the foundation for Dr. Arbisi’s opinion perplexes us. The WCCA did not

explain why the video was probative on the medical consequences of an admitted blow to

the head. Nor did it explain why, if the video was determinative of an adequate foundation

for a medical opinion, none of Gianotti’s treating physicians viewed it. The WCCA did

not explain why it credited the opinions of other doctors that also did not view the video,

but did not reach the same conclusion with respect to Dr. Arbisi’s opinion.

       Arguably, Dr. Arbisi’s opinion had as solid a factual foundation as any other expert



                                              10
in this case, as he (1) reviewed Gianotti’s pre-injury medical history dating back to 2007,

including records reviewed by no other doctor; (2) reviewed the majority of Gianotti’s

post-injury medical records; (3) conducted a significant battery of tests—more rigorous

than those conducted by Dr. Hauge; and (4) personally interviewed Gianotti.

       Second, the WCCA mischaracterized a sentence from Dr. Arbisi’s report about

Gianotti’s alleged denial of “altered consciousness” and took it out of context. It is true

that a later section of Dr. Arbisi’s report conflated the self-reported symptoms of October

23 (memory loss) with the symptoms self-reported on October 9 and 14, 2014 (headaches,

confusion, and trouble finding words). But Dr. Arbisi had already noted earlier in his report

that—other than the “islands” of memory—all of these symptoms were self-reported on

October 9 and 14, 2014. The later section made the point that Gianotti did not report any

memory loss from the day of the accident until October 23, 2014. Thus, a more accurate

reading of Dr. Arbisi’s report is that Gianotti did not self-report any memory loss on the

day of the accident, but rather mentioned this symptom for the first time on October 23,

2014, and that overall her self-reported symptoms were not credible.

        The WCCA took the single statement from Dr. Arbisi’s 20-page report out of

context, and then relied on it to conclude that all of “the facts assumed by the expert are

not supported by the evidence.” Perhaps Dr. Arbisi could have written in a clearer manner,

but that does not discredit the entire report.




                                                 11
      The compensation judge did not abuse his discretion in finding that Dr. Arbisi had

an adequate factual foundation for his opinion. Thus, the WCCA erred when it reversed

the compensation judge’s decision based primarily on Dr. Arbisi’s report.

                                           III.

      Finally, we address whether the WCCA erred when it reversed the compensation

judge’s finding that Gianotti did not suffer a concussion and post-concussive syndrome. In

weighing medical evidence, a compensation judge has the discretion as the trier of fact to

choose between competing and conflicting medical experts’ reports and opinions. Ruether,

455 N.W.2d at 478. We reverse when the facts assumed by the expert in rendering an

opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43

(Minn. 1985). As we said in Schuette v. City of Hutchinson, 843 N.W.2d 233, 237 (Minn.

2014), “the compensation judge was free to choose among conflicting medical experts’

opinions” on whether a brain injury had occurred.

      On appellate review, if “more than one inference may reasonably be drawn from the

evidence, the findings of the compensation judge are to be upheld.” Hengemuhle v. Long

Prairie Jaycees, 358 N.W.2d 54, 60 (Minn. 1984). The WCCA is not “to substitute its

view of the evidence for that adopted by the compensation judge if the compensation

judge’s findings are supported by evidence that a reasonable mind might accept as

adequate.” Id.




                                           12
      Here, the evidence supports the compensation judge’s determination that Gianotti

did not suffer a concussion and post-concussive syndrome. Because the compensation

judge’s decision to rely on Dr. Arbisi’s opinion was supported by the evidence, the WCCA

erred when it reversed the compensation judge’s finding that Gianotti did not suffer a

concussion and post-concussive syndrome. Therefore, we reverse the WCCA and reinstate

the compensation judge’s Findings and Order.

      Reversed.




                                          13
