JEOVANY FUENTES, Employee/Appellant, v. MECH. SYS., INC. and SFM MUT. INS. CO., Employer-Insurer/Respondents.

The employee appeals the compensation judge’s denial of his claim for additional benefits resulting from an admitted October 20, 2020, work injury.  We conclude that the compensation judge’s decision is supported by substantial evidence and the decision of the compensation judge is affirmed.

The employee, Jeovany Fuentes, was working as a welder for the employer, Mechanical Systems, Inc., on October 20, 2020, at an ethanol plant in Winthrop, Minnesota.  The plant was closed at the time for inspection and cleaning.  The employee was working on scaffolding inside a silo structure when he fell off a ladder and landed on the floor of the structure.  The nature and extent of the injuries sustained in this fall are disputed.

That same day, the employee was taken from the work site by his supervisor to Ridgeview Hospital in Arlington, Minnesota.  His primary complaint at that time was of low back and neck pain but he did not report that he had struck his head at this visit.  On examination, there were no acute findings involving the head, neck, or back.  The employee was then transported to Hennepin County Medical Center (HCMC) for further evaluation and care.

At HCMC, he was seen by Dr. Francis Bergman, a neurologist.  In an office note of October 21, 2020, Dr. Bergman stated that all CT and MRI scans were negative.  After an examination on October 26, 2020, Dr. Bergman recorded that the examination was essentially normal.  The employee was discharged on October 29 with recommendations for speech therapy, physical therapy, and occupational therapy.  He was also referred to Johnson Memorial Health Services for inpatient therapy.  He was discharged on November 10, 2020, and advised to continue with outpatient therapy.

An initial outpatient physical therapy evaluation was taken on November 17, 2020.  The employee reported pain in the front of his head that radiated to his neck.  He also stated that he was unable to drive, needed help with daily activities, and was unable to walk without the help of a walker.  After a psychological evaluation, he was diagnosed with post-traumatic stress disorder (PTSD) and depressive disorder due to a traumatic brain injury (TBI).

The employee began treating with Dr. Eric Shelstad, who also diagnosed TBI after a visit on November 24, 2020.  At a follow up visit on January 25, 2021, the employee complained of continuing occipital head pain.  It was noted, however, at an appointment on February 16, 2021, that he no longer used a cane, but stated he still had falls because of weakness.  Physical therapy notes in March and April 2021 noted significant pain and no improvement in his symptoms.

Dr. Shelstad referred the employee to Dr. Ming Jeong Graf.  The employee saw Dr. Graf on April 8, 2021.  She kept the employee off work due to the diagnosed TBI and related symptoms.  She continued to restrict the employee from all work after appointments in May, July, and October 2021.  She recommended the employee be seen in pain management since he did not seem to be making progress in pain control that would enable him to return to work.  At a pain clinic evaluation in April 2021, the employee had stated he was in so much pain he could not drive a car. At a visit with Dr. Graf in October 2021, the employee told her he was not making much progress with his pain.

Surveillance of the employee was instituted by the employer and insurer in September 2021.  The employee was observed walking without a cane, driving a car, and doing body work on a car using power tools.  He was seen for an independent psychological examination by Dr. John O’Neil on October 20, 2021.  In his report, Dr. O’Neil stated that he found “unmistakable” evidence of malingering and noted the “stark contrast” between the employee’s reported activities and those shown on the surveillance video.  (Ex. 6.)  At the request of the employer and insurer, the employee was also evaluated by Dr. Sarah Elert, a board-certified physical medicine and rehabilitation physician, on October 22, 2021.  Despite the employee’s stated history and complaints, and citing to the surveillance videos, Dr. Elert stated that she found no evidence of ongoing injury or limitation in the employee’s ability to work.

The employer and insurer filed a notice of their intent to discontinue workers’ compensation benefits on December 17, 2021, and the employee filed a medical request on April 11, 2022.  The pleadings were consolidated for hearing, which was held on July 19, 2022.  The compensation judge issued his Findings and Order on September 29, 2022, and denied the employee’s claims.

The employee appeals.

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 argues substantial evidence does not support the compensation judge’s decision that the October 20, 2020, injury is no longer a substantial contributing cause to his ongoing symptoms and need for ongoing treatment, restrictions, and wage loss.  The employee argues that the compensation judge relied solely on the conclusions reached by Dr. Bergman, that the compensation judge should have adopted the medical opinion of Dr. Shelstad over the opinions of Dr. O’Neil and Dr. Elert, and that the compensation judge erred by finding the employee and his witness not credible.  We disagree.

The employee first argues that the compensation judge relied solely on Dr. Bergman’s chart notes in determining the employee failed to establish that his work injury remains a substantial contributing factor in his ongoing symptoms.  The compensation judge indicated in his memorandum that he based his decision on the reports of Dr. O’Neil and Dr. Elert and on surveillance video. He also found the testimony of the employee and his witness not credible and that there was a lack of any medical findings connecting the employee’s complaints to the October 20, 2020, incident.  This evidence is plainly beyond Dr. Bergman’s chart notes.

The employee bears the burden of proof in a claim for benefits and must prove his claim by a preponderance of the evidence.  Minn. Stat. § 176.021, subds. 1, 1a.  In this case, the employee’s testimony was found to be not credible and in direct conflict with surveillance video of the employee.  Further, various medical records document the employee’s self-reported physical limitations during the same timeframe that the surveillance video was taken of him performing those exact physical abilities. This evidence also supports the compensation judge’s determination.

Next, the employee argues that both of the employer and insurer’s medical experts lack the necessary foundation for their medical opinions, which were adopted by the compensation judge.  A compensation judge’s choice between two conflicting medical experts is generally upheld unless the facts assumed by the expert in rendering the opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The expert opinion “need only be based on enough facts to form a reasonable opinion that is not based on speculation or conjecture.” Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017) (quoting Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 802, 77 W.C.D. 117, 124 (Minn. 2017)).  Dr. Elert and Dr. O’Neil examined the employee and took his medical history and were also provided with his medical records and the surveillance video taken of him.  This level of knowledge establishes adequate foundation to render an expert opinion.  See Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996), summarily aff’d (Minn. July 11, 1996); see also Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988).  Dr. Elert and Dr. O’Neil’s medical opinions do not lack proper foundation and we uphold the compensation judge’s choice of medical opinion.

In addition, the employee argues that the compensation judge erroneously determined that the testimony of the employee and his witness was not credible.  The trier of fact has the unique function of assessing a witness’s credibility.  Ibrahim v. Presbyterian Homes and Servs., WC19-6326 (W.C.C.A. Dec. 29, 2020); see also Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  It is not the role of this court to reassess the credibility and probative value of a witness’s testimony.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513-14, 43 W.C.D. 254, 260-61 (Minn. 1990).  The compensation judge stated in his memorandum that the employee’s testimony and the testimony of his witness were in direct conflict with additional evidence in the record, including the medical records, his own testimony with regard to his symptoms, and the surveillance video.  The evidence supports the compensation judge’s findings that the testimony of the employee and his witness was not credible, and we affirm.

Finally, the employee argues that the compensation judge committed an error of law by failing to address issues raised at hearing in his findings and order, claiming that the judge did not address the employee’s mental health claims and ignored the employee’s ongoing concerns.  We disagree.  A compensation judge is not required to refer to or discuss every piece of evidence introduced at hearing in his findings and order.  See Cochran v. Target Stores, 77 W.C.D. 415 (W.C.C.A. 2017); see also Regan v. VOA Nat’l Hous., 61 W.C.D. 142, 149 (W.C.C.A 2000), summarily aff’d (Minn. Apr. 6, 2001); Ruby v. Casey’s Gen. Store, 71 W.C.D. 535 (W.C.C.A. 2011), summarily aff’d (Minn. Sept. 28, 2011).  The issue at hearing was whether the October 20, 2020, injury continued to be a substantial contributing factor in the ongoing symptoms claimed by the employee.^[1]  On review, the record before this court provides the employee’s reported symptoms through the medical records, the employee’s testimony, and the various court filings.  The compensation judge ultimately found that the evidence presented by the employee failed to establish the work injury remained a substantial contributing factor in the employee’s reported symptoms.  The employee’s mental health claims were inherently included in the employee’s claims.  We conclude that the compensation judge sufficiently addressed all issues raised at hearing in his findings and order.

We affirm the compensation judge’s findings and order in its entirety.