EDDIE HUDSON, Employee/Petitioner, v. TRILLIUM STAFFING and XL INSURANCE, with claims admin’d by CORVEL CORP., Employer-Insurer/Respondents, and MEDICA HEALTH PLANS/OPTUM, CTR. FOR DIAGNOSTIC IMAGING, HENNEPIN CNTY. MED. CTR. & PHYSICIANS, PARK NICOLLET HEALTH SERVS. and PARK NICOLLET METHODIST HOSP., Intervenors.

The employee petitions to vacate a June 30, 2015, Award on Stipulation, alleging a substantial change in medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of the award, pursuant to Minn. Stat. § 176.461. Consistent with the factual findings contained in the unappealed Findings and Order of Compensation Judge Sandra Grove from an evidentiary hearing at the Office of Administrative Hearings on referral from this court, we deny the petition.

Petitioner, Eddie Hudson, injured his neck and low back and suffered a traumatic brain injury (TBI) while driving truck for the employer, Trillium Staffing, on April 16, 2014. The employer admitted liability for the work injury, but denied that a causal connection existed between the employee’s TBI and the accident. The employee retained counsel who filed a claim petition for the TBI condition. During the course of litigation, the employee fired his counsel and has since proceeded pro se.

In May 2015, the pro se employee negotiated settlement terms via email with counsel for the employer and insurer. The employee agreed to settle his claim for $125,000.00.^[1] At the time, he had been assigned permanency ratings of 10 percent for the neck, 12 percent for the low back, and 0 percent for the claimed TBI. No permanency opinion had been given with respect to any psychological conditions.

At the time of settlement, the employee was not working. He indicated in an email during settlement negotiations that he believed he may never work again due to the injuries. The medical evidence provides that he had been released to light duty physical work, though not truck driving, by the time of the award. It does not appear that he was under any formal restrictions with regard to his psychological condition, though a neuropsychologist had opined months prior that he was cognitively capable of returning to his previous level of employment. Within a few months of receiving the proceeds from the settlement of his workers’ compensation claim, the employee filed bankruptcy pleadings which stated that the employee had been engaging in handyman work and receiving cash payments in the amount of $400.00 per month.

In 2016, one year after the award was issued, the employee obtained a 75 percent permanency rating from Savina Ghelfi, M.D., a psychiatrist with whom he had been treating since November 2015. He had recently been deemed unable to work by the Minnesota Department of Human Services. The employee was considered unable to work by his psychotherapist, Noreen Keilty, with whom he received regular therapy in 2016.

In June 2016, the employee filed with this court a petition to vacate the June 2015 settlement. Upon a determination that the employee had shown good cause to vacate with an increase in permanency from 0 to 75 percent and a medical inability to work since the time of settlement, this court granted the employee’s petition.^[2] The matter was appealed to, and reversed by, the Minnesota Supreme Court.^[3] The court concluded that the medical opinion and permanency rating of Dr. Ghelfi lacked foundation because she did not include the facts and data upon which her opinion was formed, nor did the evidence in the record support her 75 percent permanency rating. In a footnote, the court indicated that “nothing we say here prevents Hudson from filing another petition in the future if he obtains new or different evidence, with proper foundation, that satisfies the statutory standard.”^[4]

Following the Minnesota Supreme Court’s June 2017 decision, the employee filed with this court a second petition to vacate the June 2015 settlement. He again alleged a substantial change in medical condition that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. In support of his petition, the employee submitted new evidence.

The employee submitted an updated permanency rating, narrative report, and treatment records from Dr. Ghelfi. Dr. Ghelfi rated the employee with 36 percent permanent partial disability under Minn. R. 5223.0360, subps. 7C(2)^[5] and 7D(2).^[6] Dr. Ghelfi’s June 15, 2017, narrative report states that she reviewed records of Dr. Sarah Rockswold and the psychotherapy records, and she consulted with the employee’s orthopedist, Dr. Van Hee. It was Dr. Ghelfi’s opinion that the employee continued to suffer from irritability, mood disturbance, and anxiety, and was not able to sustain competitive employment. Dr. Ghelfi diagnosed the employee with clinical presentation of severe depression, post-traumatic stress disorder (PTSD), anxiety, and a TBI.

The employee also submitted records from psychotherapist Noreen Keilty, who described problems with the employee’s memory, anger, and nightmares. She noted that the employee was working with a brain trauma alliance group to obtain housing. Minnesota Brain Injury Alliance (MBIA) records reveal that the employee required supervision for activities of daily living, maintaining paperwork, setting up medication, as well as with grocery shopping. The employee also submitted a disability certification form from the State Medical Review Team (SMRT), which determined that the employee met disability standards and recommended that he apply for social security disability benefits.

Also submitted with the employee’s current petition is a report summarizing psychometric testing performed by Jackie Micklewright, M.D., in 2014. Dr. Micklewright noted that results of the testing raised concerns about a developmental language-based learning disability, with expressive language skills falling within borderline to low average range. She assessed the employee with a mild TBI, but opined that, at that time, he could return to work.

At oral argument before this court in November 2017, the employee offered additional exhibits. Among those was a September 7, 2017, decision of the Social Security Administration, determining the employee to be disabled as of November 3, 2015, on account of severe impairments including major depressive disorder, generalized anxiety disorder, PTSD, and degenerative disk disease of the lumbar and cervical spine. The findings of fact upon which the decision is based details the employee’s limitations in the areas of memory, concentration, and self-management, as well as issues with aggression and interaction with others. The decision also notes that the employee requires supervision and assistance in personal care and other activities of daily living. In awarding benefits, the administrative law judge noted reliance on the opinions of Dr. Ghelfi.

In an order dated January 29, 2018, this court referred the matter to the Office of Administrative Hearings for an evidentiary hearing and findings of fact on the following three issues: (1) whether the employee’s April 16, 2014, work injury is a substantial contributing factor to the employee’s current inability to work; (2) whether and to what extent the employee’s permanent partial disability is causally related to the employee’s April 16, 2014, work injury; and (3) whether the medical opinions regarding return to work and/or permanent partial disability are supported by adequate foundation. The employer and insurer appealed from this court’s order of referral and the Minnesota Supreme Court affirmed without opinion on June 12, 2018.

An evidentiary hearing was conducted at the Office of Administrative Hearings on August 15, 2018. By Findings and Order dated September 13, 2018, the compensation judge found that the recent opinions and permanency rating of Dr. Ghelfi lacked adequate foundation (Finding 43), that the opinions of Ms. Keilty regarding the employee’s inability to work lacked adequate foundation (Finding 44), that the evidence submitted contained no adequately founded medical opinion that the employee is currently totally unable to work (Finding 46), and that the evidence submitted contained no adequately founded medical opinion assigning a permanent partial disability rating for the employee’s head injury (Finding 47). The pro se employee did not appeal from these findings, and the matter was referred back to this court for determination of the petition to vacate the Award on Stipulation.

“[T]he Workers’ Compensation Court of Appeals, for cause, at any time after an award, upon application of either party… may set the award aside and grant a new hearing.” Minn. Stat. § 176.461. “[T]he phrase ‘for cause’ is limited to the following: (1) a mutual mistake of fact; (2) newly discovered evidence; (3) fraud; or (4) a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award.” Id.

The pro se employee seeks vacation of the settlement on the basis of a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. This court generally analyzes such claims according to the factors set forth in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989), which include a change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than initially anticipated, the causal relationship between the injury covered by the settlement and the employee’s current worsened condition, and the contemplation of the parties at the time of settlement. The primary factors at issue with regard to the employee’s current petition to vacate are additional permanent partial disability and a change in the employee’s ability to work.^[7]

The employee asserts that a substantial change in medical condition since the time of settlement is established by his additional permanent partial disability. At the time of the 2015 settlement, the employee had not been provided a permanency rating related to psychological conditions allegedly suffered as a result of his work injury and TBI. He did not begin treating with Dr. Ghelfi, upon whose opinions he has since relied, until months following the settlement. Submitted in support of his petition to vacate is a June 15, 2017, Health Care Provider Report and brief narrative report from Dr. Ghelfi, indicating that the employee has been rated with 36 percent permanent partial disability pursuant to Minn. R. 5223.0360, subps. 7C(2) and 7D(2). As a result of the evidentiary hearing below, the compensation judge found the permanency opinion of Dr. Ghelfi lacked adequate foundation. We agree with the compensation judge’s analysis, and do not consider this Fodness factor to support vacating the settlement.

As cited by the compensation judge, the Minnesota Supreme Court in this case set forth three criteria to consider when determining whether a medical opinion has adequate foundation. The medical opinion must (1) include facts and/or data relied upon in forming the opinion, (2) explain the basis for the opinion, and (3) be made in reliance on facts supported by the evidence. Hudson, 896 N.W.2d at 540, 77 W.C.D. at 442 (internal citations omitted). The June 15, 2017, opinion of Dr. Ghelfi does not meet these criteria.

The opinion of Dr. Ghelfi does not include the facts and/or data upon which she relied in forming her opinion, nor does it provide an explanation. Rather, as was characterized by the compensation judge, Dr. Ghelfi provided only a general outline of sources of information she considered, and not content. (Mem. at 10.) Dr. Ghelfi’s report further stated that the employee “is taking psychiatric medication, attends therapy on a regular basis and is seen for medication management appointments once monthly on average. Mr. Hudson continues to struggle with irritability, mood disturbance and anxiety regardless of compliance with his treatment plan.” (Ex. 15.) She provides no explanation of how her clinical treatment, or how her review of treatment Mr. Hudson had received from other providers, supports the permanency ratings she assigned. Notably, both ratings require support from psychometric testing results, and Dr. Ghelfi’s opinion does not mention that she reviewed, or was even aware of, results of psychometric testing performed by Dr. Micklewright in 2014. Even so, it is not clear that psychometric testing performed in 2014 could serve as a basis for a permanency rating in 2017 for purposes of showing a changed or worsened condition since 2015. Dr. Ghelfi’s report aside,^[8] the medical records in evidence do not support requirements set forth in the rating subparts, including anatomic loss or alteration of the brain, objectively measurable neurologic deficit, or signs or symptoms of persistent organic brain dysfunction. Without evidence in the record to provide factual support for Dr. Ghelfi’s permanency ratings, her opinions lack adequate foundation and cannot be used to support the employee’s burden of proof with regard to this Fodness factor.

The employee also asserts that a substantial change in medical condition since the time of settlement is supported by a change in his ability to work. He argues that he has become permanently and totally disabled, relying primarily on the opinions of Dr. Ghelfi and Ms. Keilty. The compensation judge, however, found there to be no adequately founded medical opinion in evidence to establish a current total inability to work.

For similar reasons as set forth above, we agree with the compensation judge that the opinion of Dr. Ghelfi lacks adequate foundation. Ms. Keilty, who also opined that the employee is unable to work, similarly provides no facts or data, or any explanation, to support her opinion. As was noted by the compensation judge, Ms. Keilty’s opinion lacks foundation to the extent she relied upon the diagnoses and opinions of Dr. Ghelfi. The compensation judge was correct in concluding there are no other medical opinions in evidence to establish that the employee is currently unable to work.

Since the time of the settlement, the employee has been found to be disabled by the Minnesota Department of Human Services. In September 2017, the employee was also found to be disabled for purposes of social security disability benefits. The compensation judge reviewed this evidence, but noted that these benefit systems do not equate to the workers’ compensation system, and concluded that the fact that the employee is considered disabled under these other systems does not constitute evidence of permanent total disability under the Workers’ Compensation Act. Further, the award of social security disability benefits was made based, at least in part, on the opinions of Dr. Ghelfi which are not adequately founded. Nonetheless, this court has considered the application for and award of social security disability benefits to weigh in favor of a change in ability to work.^[9] Thus, this evidence remains relevant to the analysis. Also relevant is the language used in the stipulation for settlement. In our 2016 grant of the employee’s prior petition, which was reversed, we closely examined the language of the settlement. We noted then, and conclude now, that the fact that whether the employee would be permanently and totally disabled was not mentioned in the claims and contentions is evidence that permanent total disability was clearly not anticipated at the time of settlement. However, on balance, we consider the evidence related to the change in ability to work factor to be equivocal, at best.

There is no bright-line rule with respect to satisfaction of the Fodness factors, however, this court, in its wide discretion in considering petitions to vacate settlements, weighs the factors according to the facts of each case.^[10] While there may be some merit to the employee’s claim that there has been a change in his ability to work that was not clearly anticipated and could not have been reasonably anticipated at the time of settlement, without more, we conclude that the overall circumstances and the evidence presented do not establish good cause under the statute to justify setting aside the award. The employee’s petition is denied.