JULY 18, 2018

No. WC18-6132

EVIDENCE – EXPERT MEDICAL OPINION. Where a doctor’s opinion states the facts and data upon which it is based with explanation and support in the record, this court considers that opinion to be well-founded.

    Determined by:
  1. Sean M. Quinn, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge

Compensation Judge: James F. Cannon

Attorneys: Antonio Tejeda Guzman and Dana L. Gerber, Atkinson Law Office, P.A., Arden Hills, Minnesota, for the Appellant. Gina M. Uhrbom, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Cross-Appellants.




The employee appeals from the compensation judge’s denial of her claim for various workers’ compensation benefits related to an alleged August 18, 2014, Gillette injury to her bilateral upper extremities, and alleged specific injuries or substantial aggravations to her bilateral upper extremities condition on May 19 and/or 28, 2015, as a result of her work as a paraprofessional and playing piano for the employer school district. The employer and insurer cross-appeal the compensation judge’s refusal to consider the testimony of its witness. We affirm.


Paraprofessional Work Activities

The employee, a paraprofessional, began working for the employer school district in 2003 on a part-time basis. In 2007, she began working on a full-time basis. As a paraprofessional, the employee provided specialized services to a child with disabilities for approximately seven school years. The child suffered from seizures, was wheelchair-bound, could not speak, and had essentially no use of her limbs but wore leg and wrist braces. In 2007, the child weighed approximately 60-65 pounds. During the last year the employee worked with the child, the child weighed about 100 pounds.

The specialized services performed by the employee included lifting the child, pushing the child in a wheelchair, toileting the child, and performing daily physical therapies. The daily therapies included range of motion stretching and hand-over-hand exercises with multiple repetitions, and were typically performed for one hour per day. The child had very tense muscles and suffered from spasticity. To perform the therapies, the employee would move the child’s arms and legs, which required gripping and grasping the child’s extremities with varying levels of force and movement.

From the start of the 2007-08 school year through the end of the 2012-13 school year, the employee performed these services for the child five days a week. In the 2013-2014 school year, this frequency decreased to three days a week, sometimes more. As the years progressed, providing services to the child became more physically difficult as the child grew heavier. Lifting the child required using a two-person lift, and later, the use of a Hoyer Lift. Use of the lift required the employee to strap the child in and out of the device. It also became more physically demanding for the employee to change the child’s diapers. When the child had seizures, the child’s arms would flail and become stiff, sometimes necessitating the employee to control the child’s arms. The stiffness following a seizure made the therapy manipulations of the child’s limbs more difficult.

During the first year working with the child, the employee began to notice symptoms in her upper extremities. Her hands started to feel achy, particularly at night. By the third to fifth year, these symptoms would last longer, although they would improve over weekends and during summers. By the sixth year, she noticed numbness and tingling, as well as burning and shooting pain. The symptoms would persist and became worse with activity.

In May 2015, the employee was working with another child who suffered from behavioral issues. The employee alleged that this child forcibly grabbed her by the arm and wrist on May 19, 2015, and again on May 28, 2015, and that these two incidents worsened her already significant bilateral upper extremity symptoms.

Piano Playing Work Activities

In addition to providing paraprofessional services, the employee played piano for the school district. She played piano for the school’s 2014 summer and fall musicals, including auditions, rehearsals, and performances. She typically played five to six nights per week and one to two hours a night at first, and two to three hours per night as the performance approached.

The employee had played piano and organ for a number of years. She described playing a piano as more physically demanding, at least insofar as the upper extremities, than playing an organ. She stated that her upper extremity symptoms became worse while playing piano for the summer musical and worsened during the fall music schedule. She wore splints to play the piano during the July performance.

Medical Treatment

The employee had at least one medical visit in 2013 where she was prescribed splints for her upper extremities. In August 2014, she was seen by Dr. Debra Peterson of ACMC in Wilmar where, upon examination, Phalen’s and Tinel’s signs were found to be positive. She was diagnosed with bilateral carpel tunnel syndrome and possibly ulnar neuropathy. Despite the positive Phalen’s and Tinel’s signs, her exam findings and EMG results were otherwise normal. Her doctors nevertheless concluded that her symptoms and the positive Phalen’s and Tinel’s signs supported the diagnoses, which also included bilateral cubital tunnel and pronator teres syndromes. She was engaged in both occupational therapy and physical therapy to treat her symptoms.

On May 11, 2015, the employee had a corticosteroid injection in the left upper extremity to determine whether her symptoms would improve and whether carpel tunnel surgery might be helpful.

In July 2015, the employee underwent left carpal tunnel and ulnar nerve decompression surgery. She testified to having had significant improvement on her left side as a result of the surgery. The symptoms on her right side also began to improve during the summer of 2015, attributed to rest during the summer school break. By September 2015, however, she began to have some additional symptoms in her left upper extremity. Her right-sided symptoms continued to persist, but slowly improved.

The employee’s treating doctor, Dr. Michael Lee, wrote a report opining the employee’s work activities as a paraprofessional and as a piano player for the school district were substantial contributing factors in bringing about her bilateral carpal tunnel and cubital tunnel conditions, necessitating medical care, including the surgery on the left side and the therapy bilaterally. He also opined the two May 2015 incidents were aggravating factors to the upper extremity conditions and need for medical care.

Dr. William Simonet was hired by the employer and insurer to give an opinion. Dr. Simonet opined the employee did not suffer from carpal tunnel or cubital tunnel conditions. Moreover, Dr. Simonet opined the medical records did not support these conditions, nor did they reflect any significant long lasting improvement as a result of the surgery, which he considered further support of his opinion that the employee never had carpal tunnel or cubital tunnel syndrome. Instead, he diagnosed non-specific bilateral upper extremity pain which was not a result of any of her work activities or incidents. He also opined the employee’s weight and hypothyroidism were co-morbidities for her symptoms.

Hearing Before Compensation Judge

The matter came on for hearing before a compensation judge. The issues presented included whether the employee sustained Gillette injury to her bilateral upper extremities, or specific injuries or substantial aggravations of her condition on May 19 and/or 28, 2015, as a result of her work activities. The compensation judge denied the employee’s claims and found the opinion of Dr. Simonet more persuasive than the opinion of Dr. Lee. The compensation judge adopted the employer and insurer’s approach in determining whether the employee’s work activities were sufficient to lead to a Gillette injury, by calculating the percentage of the number of hours per week the employee was engaged in a particular activity. The employee appeals.

At hearing, the testimony and report of the employer and insurer’s witness were admitted into evidence. However, the compensation judge stated in his Findings and Order that he would not consider that evidence because the witness was “closely aligned” with the insurer. The employer and insurer cross-appeal on this issue.


On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).


The employee appeals from the compensation judge’s denial of her claims, arguing that the acceptance of Dr. Simonet’s opinion was an abuse of discretion because that opinion lacked foundation, and that substantial evidence does not support the compensation judge’s findings that the employee did not sustain work related injuries as claimed.

The employee asserts that the opinion of Dr. Simonet lacks foundation, and therefore, the compensation judge abused his discretion in accepting that opinion. Specifically, she argues that foundation is lacking because Dr. Simonet took into account, at least to some extent, the report of the employer and insurer’s witness whose testimony and report were ultimately not considered by the compensation judge, and because the employer and insurer did not specifically request that Dr. Simonet address the employee’s piano playing.

The opinion of a doctor is considered well-founded if it states the facts and data upon which it is based with explanation and has support in the record. See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017) (citing Wenner v. Gulf Oil Corp., 264 N.W.2d 374, 381 (Minn. 1978)). The record reflects that not only did Dr. Simonet perform an examination of the employee, meet with her, and take a history from her, he reviewed copious medical records and other evidence, including the report ultimately not considered by the compensation judge. His opinion, that the employee did not have carpel tunnel or cubital tunnel syndrome and that there was no objective evidence to explain her bilateral upper extremity complaints, is based upon his own examination and is supported by the medical evidence, even if the report of the employer and insurer’s witness is disregarded. Upon review of the information available to Dr. Simonet, it is clear that he was aware of the employee’s work activities including playing the piano. We conclude that Dr. Simonet’s opinions were based on adequate foundation.

The compensation judge found the opinion of Dr. Simonet more persuasive than the opinion of Dr. Lee. A compensation judge, in choosing the opinion of one medical expert over another, is well within his discretion. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Because we conclude that Dr. Simonet had adequate foundation, this court will not second guess the compensation judge’s choice of experts.

The employee argues that because Dr. Simonet’s opinion lacked foundation, substantial evidence in the record did not support the compensation judge’s findings that the employee did not sustain Gillette injury, specific injuries, or substantial aggravations to her bilateral upper extremities. As we have concluded that the opinions of Dr. Simonet are adequately founded, the compensation judge was within his discretion in accepting those opinions in support of his denial of the employee’s claims.

Finally, the employee argues that the compensation judge’s findings, wherein he recites the arguments made by the employer and insurer with regard to the percentage of time in a week the employee engaged in particular activities, should be vacated because he relied on these percentages as evidence. In isolation, reliance on a precise mathematical equation or a specific number of hours an employee must perform an activity for that activity to be deemed “repetitive” under a Gillette analysis is problematic and impractical. Indeed, while proof of a Gillette injury requires evidence of frequency, duration, and extent of work activities, see Stevens v. Hal Leonard Publ’g, 39 W.C.D. 567 (W.C.C.A. 1986), summarily aff’d (Minn. Mar. 3, 1987), this court has concluded in other cases that work activity of a short duration may contribute to the onset of a Gillette injury. See Washburn v. McGough Constr., 50 W.C.D. 127 (W.C.C.A. 1993). Regardless, because there was substantial evidence in the record as a whole, it was reasonable for the compensation judge to conclude that the employee did not sustain Gillette injury, and we therefore affirm.

Because we affirm the compensation judge’s denial of the employee’s claims, we decline to address the arguments set forth by the employer and insurer in its cross-appeal.