Unclear Expert Witness Opinion Discredited, Reversed on Appeal

A clinical psychologist's expert report "could have been written in a clearer manner", the Minnesota Supreme Court noted in its reversal of a state Workers' Compensation Court of Appeals' decision, reinstating the compensation judge's findings.

The state Supreme Court found that while the psychologist's report at one point "conflated" dates and the plaintiff's alleged symptoms, the report early on noted those dates and symptoms clearly.

In Gianotti v. Independent School District 152, Minn. Feb 8, 2017, Ellen Gianotti, the plaintiff, a school bus monitor for the school district, was on a bus traveling 15 miles an hour when it unexpectedly braked. Gianotti fell, struck the side of her head on the bus' front console, landing on her left arm. She was taken to the hospital, complaining of pain in her head and left arm. A CT scan and X-rays were negative for symptoms of a concussion. A medical report at the time noted that she never lost consciousness and had no symptoms of concussion; she was diagnosed with a head injury and arm contusion.

The day after Gianotti fell, she saw a second physician, Dr. Kuhlmann, who found no symptoms of a concussion. The next day Gianotti went to another physician, Dr. Sampson, complaining "of headaches, confusion, and trouble finding words." A CT scan was negative, but Sampson noted that she reported symptoms that were "most consistent with post concussion syndrome." Five days later, Gianotti went to a fourth physician, Dr. Sheldon, who found that she had post-concussive symptoms, and arranged a neuropsychological assessment for her with Dr. Hauge, PhD, a licensed psychologist.

At Gianotti's neuropsychological assessment, she reported for the first time that she had "islands of memory" (altered consciousness) on the day of the accident. Hauge diagnosed Gianotti with a concussion, noting that she was "experiencing multiple symptoms of somatic, cognitive, and emotional-related change," and referring her for anxiety therapy, therapy which Gianotti continued to take for some months.

At the request of the school district, Gianotti saw Dr. Paul Arbisi, PhD, a clinical psychologist expert witness. Arbisi reviewed Gianotti's medical records and found that she had not fully disclosed to the school district nor to the physicians treating her for the bus injury that she had a history of taking Zoloft and Xanax. Arbisi conducted a broader battery of psychological tests than those conducted by Hauge, and found that Gianotti reported "non-credible psychiatric symptoms, as well as non-credible memory and cognitive problems." He concluded that she had not suffered a concussion or post-concussive syndrome.

Sheldon and Hauge disagreed with Arbisi's report, writing to Gianotti's attorney that her symptoms were consistent with a traumatic brain injury and post-concussive syndrome.

Gianotti filed a medical request with Minnesota Workers' Compensation for coverage of various treatments, including treatment for emotional and psychological conditions allegedly caused by her head injury. The school district filed a Petition to Discontinue Benefits. A Minnesota Workers' Compensation judge found Arbisi's report compelling, and rejected Gianotti's claim.

Gianotti appealed to the Workers Compensation Court of Appeals (WCCA), arguing that the opinions of her treating physicians outweighed Arbisi's, and that Arbisi's opinion lacked factual foundation because he had not reviewed a video of the accident and some of her post-injury psychiatric records.

The WCCA reversed the compensation judge, finding that Arbisi was not competent as an expert, that he lacked factual foundation for his opinion because he did not review a video of the accident, and that all the other evidence indicated that Gianotti suffered a concussion.

At the appeal, the WCCA raised the issue of Arbisi's competence. The state Supreme Court found that to be an error as both the school district and Gianotti had previously agreed the Arbisi was competent, and Gianotti had not raised the issue in her appeal; the issue had been forfeited.

The Court also found the WCCA's ruling on the lack of factual foundation "perplexing": the WCCA did not explain why the video was probative nor why, if it was probative, none of Gianotti's treating physicians viewed it.

More importantly, the state Supreme Court found that the WCCA took a single statement from Arbisi's report out of context to discredit it. The WCCA noted that Arbisi's report stated that Gianotti did not claim "any memory loss from the day of the accident until October 23, 2014." According to the Court, that statement should have been that Gianotti did not claim "any memory loss on the day of the accident, but rather mentioned this symptom for the first time on October 23" — a statement inline with earlier parts of Arbisi's report.

The state Supreme Court found that the WCCA erred using this one statement to conclude that all of the facts in Arbisi's report were unsupported by the evidence: "Perhaps Dr. Arbisi could have written in a clearer manner, but that does not discredit the entire report."

The Court reversed the WCCA and reinstated the compensation judge's order.