EVIDENCE – ADMISSION. The compensation judge did not abuse her discretion and commit reversable error by admitting into evidence an exhibit inadvertently offered by the employee and which was not used in the compensation judge’s denial of the employee’s claims.
EVIDENCE – EXPERT MEDICAL OPINION. Where the medical expert had enough facts to form a reasonable opinion, and his opinion is not based upon speculation or conjecture, that opinion is adequately founded and can be relied upon by the compensation judge.
EVIDENCE - ADMISSION; APPEALS - SCOPE OF REVIEW. Where the employee offered no objection at hearing with regard to the report of the employer and insurer’s medical expert, the Workers Compensation Court of Appeals will not consider the issue for the first time on appeal.
Compensation Judge: Veronica Walther
Attorneys: James W. Balmer, Falsani Balmer, Duluth, Minnesota, for the Appellant. Craig B. Nichols, Aafedt, Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employee appeals the compensation judge’s denial of the employee’s claim that he sustained a work-related injury to his neck/cervical spine. Substantial evidence supports the compensation judge’s findings and order, and we affirm.
Wayne Quinones, the employee, was driving a company vehicle for General Security Services Corp., DBA Midwest Patrol, the employer, when he collided with a vehicle in front of him and was rear ended by another vehicle on February 5, 2022. The employee’s airbag deployed, and the vehicle was towed from the scene. On that same day, the employee was seen in the emergency department at St. Mary’s Hospital with complaints of a dull frontal headache, but no complaint of neck or shoulder pain. He moved all extremities equally, had full passive range of motion of the cervical spine, and the head CT scan showed no acute intercranial abnormality. The employer admitted liability and paid medical benefits. The employee returned to work.
Prior to the February 2022 motor vehicle accident, the employee had a long history of non-work-related injuries to his shoulders, head, and neck. In February 2012, he fell on his head while skiing and developed neck soreness, stiffness, and a concussion with headaches and concentration, and mild memory issues. In March of 2013 he ruptured his left bicep tendon and had a full thickness tear of the left rotator cuff requiring surgery. He suffered a basilar skull fracture following a fall in May 2015 and reported a history of right ulnar neuropathy. He continued to have headaches and memory issues through July 2015.
Six weeks following the February 2022 motor vehicle accident, the employee underwent x-rays showing a straightening of the cervical spine. Over the course of several months, the employee sought medical care and treatment with a number of providers. An MRI scan in April 2022 showed C5-C6 degenerative disc disease and neural foraminal narrowing, a small disc prolapse with flattening of the anterior cord but no spinal stenosis at C6-7, and no cord signal abnormality. The employee underwent a neuro diagnostic evaluation to determine if he had radiculopathy of the neck. An electromyography test (EMG) found sensory and neuropathy consistent with chronic carpal tunnel syndrome and a possible mild chronic C8-T1 radiculopathy with no evidence of acute/active cervical radiculopathy. The employee underwent C5-6 injections with limited relief. He was diagnosed with chronic cervicalgia and facet dysfunction. In October 2023, an MRI scan of the neck showed no evidence of nerve root compression to explain the reported radiculopathy seen on the EMG.
The employer sought an independent medical examination with orthopedic surgeon William Simonet, M.D. Dr. Simonet examined the employee, took the employee’s medical history, reviewed medical records, and issued a report on April 24, 2023. Dr. Simonet diagnosed the employee with neck pain without evidence of radiculopathy, deconditioning syndrome, and a history of chronic cigarette smoking. He noted minor age-appropriate cervical degenerative disc disease with no evidence of an injury due to the February 2022 work related accident. He also noted that the employee did not complain of neck pain during examination. Dr. Simonet opined that the employee did not suffer an injury to the neck as a result of the February 5, 2022, accident.
The employee filed a claim petition on May 29, 2024, claiming entitlement to temporary total disability (TTD) benefits from June 26, 2024, to the present, and medical expenses for the left shoulder, head, bilateral carpal tunnel, and neck. The matter came on for hearing before a compensation judge on June 11, 2025. The compensation judge, relying on the opinion of Dr. Simonet, found that the employee’s left shoulder, head, bilateral carpal tunnel, and neck were not compensable injuries. The compensation judge denied the employee’s claims in their entirety. The employee appeals the judge’s finding as it relates only to the employee’s cervical spine condition.
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). When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge. Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022). 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); see also Smith v. Carver Cnty., 931 N.W. 2d 390, 79 W.C.D. 495 (Minn. 2019).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involve 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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79 (Minn. 2003).
On appeal, the employee argues that substantial evidence does not support the compensation judge’s finding that the employee did not sustain a work-related injury to his cervical spine. The employee maintains that the compensation judge erred in adopting the opinion of the employer’s medical expert, Dr. Simonet, contending that opinion lacked adequate factual foundation. He also argues that the motor vehicle accident report (Ex. E) was evidence improperly received and that the compensation judge committed error in relying on that report.
The employee argues the compensation judge’s admission of the motor vehicle accident report (Ex. E) constitutes error because the “court and counsel mixed it up with another exhibit” which resulted in an erroneous finding. Specifically, the employee argues that the exhibit was not offered into evidence and therefore should not have been received as evidence. We are not persuaded.
We note that the exhibit at issue, Exhibit E, was introduced and offered into evidence by the employee. The transcript reflects that Exhibit E was marked as Motor Vehicle Crash Report of February 5, 2022. (Ex. E at CAH 00956.) The transcript indicates that there was some confusion as to Exhibit F, as some pages were removed by counsel at hearing before that exhibit was offered. The compensation judge then stated “just to clarify on the record, I will be reviewing all of Exhibit E.” (T. 9.) The exhibit was offered and admitted into evidence without objection. (T. 10.) We find no error in the compensation judge’s admission of this exhibit.
Further, had Exhibit E been admitted in error, the error was harmless error. In her memorandum, the compensation judge explained the rationale of her findings, and she did not expressly rely on Exhibit E. The compensation judge noted that the employee’s symptoms expanded over time since the February 5, 2022, motor vehicle collision and that his description of the motor vehicle collision has varied. She pointed out that there was no mention of neck pain in the emergency room records immediately after the accident, with the first complaint of neck pain manifesting six weeks after the incident. The compensation judge weighed the conflicting medical expert reports setting forth the opinions of multiple doctors. She explained that since the medical experts who supported the employee’s claims, such as that of Dr. Klassen, relied on the employee’s differing and unreliable descriptions of his injury, symptoms, and medical history, those opinions lacked adequate factual foundation. Instead, the compensation judge relied on the expert medical opinion of Dr. Simonet, who reviewed the employee’s medical records, examined the employee, and opined that the employee did not sustain a work injury to his neck on February 5, 2022. As discussed below, the opinion of Dr. Simonet does have adequate factual foundation, and it was appropriate for the compensation judge to rely on that opinion. As such, even if Exhibit E was admitted and reviewed in error, the error is considered harmless. See Engelhart v. Liston Gen. Contracting, Inc., 72 W.C.D. 753, 759 n.1 (W.C.C.A. 2012)(citing Johnson v. Arctic Cat, Inc., 64 W.C.D. 106, 110 (W.C.C.A. 2004) and Dozier v. Control Data Corp., 44 W.C.D. 246 (W.C.C.A. 1990), summarily aff’d (Minn. Mar. 7, 1991)(indicating that the issue is whether the evidence in question is portrayed correctly in substance and, if so, an error may be considered harmless)). As there is no indication that the compensation judge relied upon Exhibit E, erroneous admission of that exhibit would be, at most, harmless error.
The employee contends that the medical opinion of Dr. William Simonet, upon which the compensation judge relied, lacked adequate factual foundation as Dr. Simonet omitted any description of documents or other information relied upon in his opinion. The employee argues adopting such a medical opinion to deny an award of benefits is reversible error. He maintains that Dr. Simonet did not review any diagnostic images of the employee’s neck or cervical spine which would have provided an objective demonstration that an injury had occurred. We disagree.
A compensation judge’s adoption of an expert opinion must be upheld if the opinion has adequate foundation, absent an abuse of discretion. Mattick v. Hy-Vee Foods Stores, 898 N.W.2d 616, 621, 77 W.C.D. 617, 624 (Minn. 2017). “An expert opinion lacks adequate foundation when the opinion does not include the facts upon which the expert is relying in forming the opinion, there is no explanation of the basis for the opinion, or the facts assumed by the expert are not supported by the evidence.” Erickson v. Grand Itasca Clinic & Hosp., No. WC21-6413 (W.C.C.A. Nov. 16, 2021)(citing Hudson v. Trillium Staffing, 896 N.W.2d 536, 540, 77 W.C.D. 437, 442 (Minn. 2017)).
Here, the compensation judge weighed the opinions of multiple medical experts and found Dr. Simonet’s opinion to be the most persuasive. Dr. Simonet reviewed voluminous medical records from both before and after the February 5, 2022, incident, as set forth on the first page of both his April 24, 2024, report and July 11, 2024, supplemental report. Dr. Simonet also took a history from the employee and conducted a physical examination. In his reports, Dr. Simonet concluded that the employee did not suffer from a neck injury attributable to the February 5, 2022, motor vehicle collision. The employee argues that, since Dr. Simonet did not review any films of the employee’s cervical spine, his report lacks foundation. Contrary to this contention, Dr. Simonet noted that the MRI scan of the cervical spine performed about 6 ½ weeks after the motor vehicle accident showed C5-6 degenerative disc disease and C6-7 disc space narrowing. Dr. Simonet described these findings as “simply naturally occurring degenerative processes. None of them demonstrate any evidence of acuteness or injury.” (Ex. 1.) This notation indicates that Dr. Simonet did review the March 24, 2022, MRI report.
As further support for his conclusion that these changes were degenerative in nature and pre-existed the 2022 incident, Dr. Simonet referenced a CT scan of the neck in 2015 which had already shown degenerative changes at the C5-6 level. Dr. Simonet also discussed an October 2023 cervical MRI scan that showed no evidence of nerve root compression to explain the reported radiculopathy seen on the EMG. Further, on physical examination of the employee, Dr. Simonet noted that the employee had a full range of motion and a normal neurologic evaluation. Even if Dr. Simonet did not view the actual cervical films, and relied on the reports, his opinion is supported by adequate factual foundation. The compensation judge, as trier of fact, has discretion to choose between competing and conflicting medical experts’ reports and opinions. Ruether v. State of Minn., 455 N.W.2d 475, 478, 42 W.C.D. 1118, 1122 (Minn. 1990); Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985); Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (Minn. 2017). The compensation judge’s adoption of Dr. Simonet’s medical opinion in finding that the employee did not sustain a work injury to his cervical spine on February 5, 2022, does not constitute reversible error.
Moreover, at the hearing, the employee did not object to the admission of Dr. Simonet’s report on the basis that it lacked adequate factual foundation. For a party to argue on appeal that an expert opinion adopted by the compensation judge lacked foundation, they must object on the record at hearing or forfeit the issue on appeal. See Erickson v. Qwest Corp., No. WC19-6276 (W.C.C.A. Oct. 24, 2019); see also, Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 77 W.C.D. 117 (Minn. 2017). Here, the employee did not object to the admission of Dr. Simonet’s report, Exhibit 1, and cannot raise the issue on appeal.
The compensation judge’s denial of the employee’s claim that he sustained a work-related injury to his neck/spine is supported by substantial evidence in the record and is affirmed.