Following the Minnesota Supreme Court’s June 2017 decision where they concluded that Dr. Ghelfi’s medical opinion and permanency rating lacked foundation because she did not include facts or data upon which her opinion was formed, not did the evidence in the record support her 75% rating. A footnote indicated that there was nothing to prevent Hudson from filing another Petition to Vacate if he obtains new or difference evidence.
The Employee filed a second Petition to Vacate under a substantial change in circumstances argument. He submitted an updated permanency rating of 36% from Dr. Ghelfi. Her narrative report states she reviewed psychotherapy records from Dr. Rockswold and orthopedic records from Dr. Van Hee. She opined he was not able to sustain competitive employment.
The Employee also submitted psychotherapist records, records from Minnesota Brain Injury Alliance that he requires supervision with daily living activities, a disability certification form from the State Medical Review Team that he met disability standards and recommended he apply for SSDI. The Employee also submitted psychometric testing done in 2014 that diagnosed him with a mild TBI but that he could return to work at that time. He also submitted an award from the Social Security Administration that he is disabled as of November 3, 2015.
The WCCA referred the matter to OAH for an evidentiary hearing and findings of fact on three issues:
- Whether the Employee’s April 16, 2014 work injury is a substantial contributing factor to the Employee’s current inability to work;
- Whether and to what extent the Employee’s permanent partial disability is causally related to the Employee’s April 16, 2014 work injury; and
- Whether the medical opinions regarding return to work and/or permanent partial disability are supported by adequate foundation.
The Employer and Insurer appealed from the WCCA’s order of referral and the Supreme Court affirmed.
At the hearing, the compensation judge found that the new opinions and permanency rating of Dr. Ghelfi lacked adequate foundation, the opinions regarding the Employee’s inability to work and permanent partial disability rating lacked adequate foundation. The pro se Employee did not appeal. The matter was referred back to the WCCA for determination of the Petition to Vacate.
The WCCA looked to the Fodness Factors. The Employee asserted at the time of the settlement, he did not have a permanency rating but has now since been rated at 36%. The WCCA agreed that the permanency opinion of Dr. Ghelfi lacked adequate foundation. Dr. Ghelfi did not include facts and/or date upon which she relied in forming her opinion, nor does it provide an explanation. She provided no explanation how any of the treatment supports the permanency ratings. The ratings that she assigned required psychometric testing results but she does not mention if she reviewed these or was even aware these results existed from 2014. Even so, it is unclear if a 2014 test could serve as a basis in 2017 to showing a change or worsening condition.
The Employee also asserted a change in the ability to work. The WCCA agreed with the compensation judge that the opinions of Dr. Ghelfi and Ms. Keilty lacked medical foundation. Ms. Keilty also provided no facts or data, or any explanation, to support her opinion. Additionally, she relied on the opinions of Dr. Ghelfi.
The WCCA also noted that the conclusions and decisions or the Minnesota Department of Human Services and Social Security do not equate to the workers’ compensation system. Additionally, the Social Security decision was based partly on Dr. Ghelfi’s opinion.
Therefore, the Employee did not show good cause under the statute to justify setting aside the Award. The WCCA denied the Petition to Vacate.