The Employee, a school bus monitor, sustained an injury after falling forward and hitting her head and left upper extremity. The Employer and Insurer admitted an injury and paid benefits. Subsequently, the Employee claimed to be suffering from post-concussive syndrome. Benefits were denied after the Employer and Insurer acquired the independent psychological evaluation report of Dr. Paul Arbisi, who opined that the Employee did not suffer a concussive injury and interpreted an MMPI-2 which indicated that the Employee was intentionally attempting to exaggerate, if not feign, her severe psychological and cognitive deficits.
At trial, the Compensation Judge rejected the opinions of the Employee’s treating physicians and found that the Employee did not suffer from a concussive injury, relying principally on Dr. Arbisi’s report. The Employee appealed, asserting that Dr. Arbisi did not have factual foundation for his opinion, and that the Judge’s findings were not supported by substantial evidence.
The W.C.C.A. reversed the compensation judge on two grounds. First it ruled that Dr. Arbisi, as is a psychologist and not a medical doctor, is incompetent to provide expert opinion on a physical injury like a concussion. Secondly, the W.C.C.A. found that Dr. Arbisi did not have factual foundation for his opinion, because he had not viewed school bus video of the incident and that Dr. Arbisi misunderstood the Employee’s post injury symptoms.
The Employer and Insurer appealed to the Minnesota Supreme Court and argued that the W.C.C.A. improperly raised the issue of expert competency, noting that it was agreed by the parties that Dr. Arbisi’s competency was never raised. Further, Dr. Arbisi did have factual foundation for his opinion and the W.C.C.A. improperly applied Hengemuhle in its decision.
The Supreme Court reversed the W.C.C.A.. First, the Minnesota Supreme Court avoided the merits of the competency argument by finding that the Employee had failed to raise the issue, which was therefore forfeit. Consequently, W.C.C.A. improperly raised the issue of expert competency. The Minnesota Supreme Court also found Dr. Arbisi’s report to have sufficient factual foundation, as he enjoyed “as solid factual foundation as any other expert.” It is noted that the W.C.C.A. “mischaracterized a sentence of Dr. Arbisi’s report” to discredit the entire report. The Supreme Court also took issue with the contention that Dr. Arbisi’s failure to view the video made his opinions inadmissible when none of the employee’s treating physicians had reviewed that same video.
As the W.C.C.A. was reversed in full, the Compensation Judge’s Findings and Order were reinstated.