Catching Up on Some Zs in California – Sleep Disorders

Catching Up on Some Zs in California – Sleep Disorders

  By Robert G. Rassp, Esq.

Whole person impairment ratings for sleep disorders in Table 13-4, and the instructions for use on page 317 of the AMA Guides Fifth Edition have created conflicting WCAB panel decisions on whether a sleep disorder can exist as a stand-alone WPI rating or if it is limited to a 3% WPI pain related impairment add-on under Chapter 18 of the AMA Guides Fifth Edition and page 1-12 of the 2005 PDRS. Remember, sleep is also considered to be an “activity of daily living (ADL)” under Table 1-2 on page 4. Two recent WCAB panel decisions reflect the controversy where one panel decision does not allow a stand-alone sleep disorder rating while another one does. What is interesting about these two panel decisions is that two out of three WCAB commissioners were the same in both cases. [Note: WCAB panel decisions are not citable legal authority but are persuasive authority and can be used as evidence in the same or similar scientific issues. See Labor Code section 5703(g).]

Jones v. City of Long Beach, PSI
In Jones v. City of Long Beach, PSI, 2012 Cal. Wrk. Comp. P.D. LEXIS – [free access here], Applicant suffered an admitted right shoulder injury on 3/15/2007 during her employment as a file clerk with Defendant. Applicant received medical treatment, including shoulder surgery, from orthopedic surgeon Dr. Ray Craemer. In his 1/21/2009 permanent and stationary report, Dr. Craemer noted that Applicant was having problems sleeping due to the pain she experienced when she rolled onto her injured shoulder. Dr. Craemer included no diagnosis of a sleeping disorder, nor did he mention any need to treat her sleeping problems in his report. In discussing Applicant’s impairment rating under the AMA Guides, Dr. Craemer opined that Applicant’s sleeping condition would be in class 1 with a 5 percent WPI based upon the physical examination presentation and on the Epworth Sleepiness Scale score.
In November of 2009, Dr. Roman Culjat performed a sleep study on Applicant, the results of which were essentially normal. Dr. Craemer discussed the sleep study in his 6/2/2010 report, noting that Applicant exhibited hypersomnia, and that her Epworth score of greater than 10 suggested sleepiness. However, he agreed with Dr. Culjat’s conclusion that the sleep study was essentially normal.
In his deposition, Dr. Craemer stated that he believed Applicant’s sleep problem was industrially caused because, by eliminating other sleep disorders such as sleep apnea, as was done by Dr. Culjat, “it’s medically probabl[e] that after a major shoulder operation a little bit of sleep impairment would be reasonable.” Dr. Craemer stated that Applicant’s sleep problem was in the mid range, rather than the higher range of class 1 under the AMA Guides.
The matter proceeded to a trial on the issue of whether Applicant had an industrially caused sleep disorder, along with the issues of PD and need for future medical treatment for the claimed sleep disorder. On 10/25/2011, the WCJ issued a decision in which she found that Applicant incurred compensable injury in the form of a sleep disorder in addition to her shoulder injury, causing 31 percent PD.
Defendant sought reconsideration, contending in relevant part that the WCJ’s finding of industrial injury in the form of a sleep disorder and award of PD based upon that finding was not supported by substantial evidence and was contrary to the law. The WCJ recommended that reconsideration be denied, based upon her determination that Dr. Culjat’s diagnosis of hypersomnia coupled with Dr. Craemer’s testimony indicating that people with shoulder injuries tend to wake up as a result of pain when they roll over, supported Applicant’s claim for a sleep disorder.
The WCAB granted reconsideration, and rescinded the WCJ’s finding. The WCAB concluded that, as shown by the medical evidence, Applicant’s hypersomnia was related to the pain caused by her industrial right shoulder condition and was not a separate ratable sleep disorder causing PD. Because the effects of pain caused by the admitted right shoulder injury were encompassed within the PD rating for the shoulder injury, the WCAB found that it was error to award PD based upon Applicant’s hypersomnia. According to the WCAB,
     In order to rate a sleep disorder under Table 13-4 at Page 317 of the A.M.A. Guides, the sleep disorder cannot be the result of pain from an underlying injury, which is already included in the rating of that injury. Here, applicant’s hypersomnia is not caused by the impairment categories that the A.M.A. Guides describes as support for a diagnosis of sleep disorder. As Dr. Craemer made clear, it is expected that rolling onto an injured shoulder while sleeping will cause minor pain and “a little bit of sleep impairment.” As such, the sleep disruption is a consequence of the shoulder pain, which is already accounted for in the impairment rating for the shoulder condition.
     As noted by another Appeals Board panel in their 2008 decision:
“To rate a sleep disorder under Table 13-4 at page 317 of the [A.M.A.] Guides, the cause of the sleep disorder cannot be pain from the underlying injury because pain, and its effects on the worker, is included in the rating of the impairment of the injured body part.” (Pena v. Alvarado Hospital (2008) 2008 Cal.Wrk.Comp.P.D. LEXIS 345 (Pena).)
     Although the holding in Pena is not binding precedent upon us, we agree with that panel’s view and apply it in this case. The medical record does not support a finding that applicant incurred a separate sleep disorder. Instead, her disrupted sleep is an anticipated consequence of the pain caused by her shoulder condition. As such, there is no basis to separately rate applicant’s hypersomnia as a sleep disorder under the A.M.A. Guides. Moreover, the record also is clear that applicant’s hypersomnia has not caused any work restrictions or impairment of her activities of daily living and has not separately caused permanent disability.
The WCAB returned the case to the WCJ for a new decision on PD that did not include Applicant’s claimed sleep disorder as a separate injury.

Raquel Hernandez v. Viam Manufacturing, Inc.

In contrast to the Jones case, we also have Raquel Hernandez v. Viam Manufacturing, Inc., 2012 Cal. Wrk. Comp. P.D. LEXIS – [free access here] which came to the opposite result. In Hernandez, the Applicant had a repetitive, hand intensive job which gradually developed into a right shoulder cumulative trauma. She began complaining of sleep disturbance due to the stress of her job along with the onset of upper extremity pain and hypertension. After she had right shoulder surgery, her problems with sleep worsened.

Unlike the Jones case, discussed above, in Hernandez, both the treating physician and the evaluating PQME indicated that the Applicant suffered from a sleep disorder and the WCJ relied on the treating physician’s conclusion that the Applicant’s sleep disorder rated 8% WPI even though there was no sleep study conducted. The panel QME likewise opined that the sleep disorder was industrial but assigned a WPI rating of 3%, also relying on the Epworth Sleep Study.

The WCAB panel adopted and incorporated the WCJ’s Report and Recommendation wherein she stated:

     “Both doctors found a WPI without the need for a formal sleep study because both doctors found that the applicant’s sleep disturbance interfered with her activities of daily living.

     “With respect to the issue of the sleep disorder, the applicant testified that she did not have problems sleeping until 2007 which was the time she started feeling pain in her hands [citation to record omitted]. She had been working as a machine operator/seamstress making carpeting for automobiles since 1996. This involved use of both upper extremities. She would take the carpeting, put it on the machine and feed the product into the machine. She worked on 300 sets in 10 hours. The carpets weighed from four to ten pounds. She also carried the products back and forth several times a day. She testified she had to work fast in order to get the orders out. At the same time that she started feeling pain in her hands, she noticed loss of strength as well. She noticed the pain while driving.

     “Her sleep pattern was normal before the injury occurred. She used to sleep approximately eight hours per night but when she started having physical symptoms, she would wake up with pain and numbness in her hands. She had surgery to her right shoulder and right wrist on 7/6/09 and after the surgery, her sleep pattern got worse. She would wake up with shoulder pain and her hands were numb [citation to record omitted]. After the surgery, she slept for approximately six hours but would wake up around 1:00 o’clock, go back to sleep until 3:00 o’clock, and wake up again but could not go back to sleep. She would wake up due to pain in her arms, shoulders and hands. She testified she continues to have sleep problems [citation to record omitted].

     “In [the treating doctor’s deposition testimony, the doctor] explained that besides fatigue, Ms. Hernandez had difficulty in concentrating, decreased driving impairing her ability to travel and slightly diminished sexual functioning along with her sleep problems. Her Epworth score put her in the upper end of class 1. Under the AMA guides, Table 13-4 page 317, a class one impairment has a WPI range from 1-9 percent. The impairment is due to reduced daytime alertness and a sleep pattern such that an individual can perform most activities of daily living. Although the guidelines state that it is expected that the diagnosis of excessive daytime sleepiness has been supported by formal studies in a sleep laboratory, this language is not mandatory.

     "Based upon the medical reports of [the treating physician and panel QME], and the credible testimony of the applicant, there is substantial evidence to find that the applicant had a WPI of 8% for the sleep disorder.”

Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (Excerpt on Sleep Disorders)

There is significant disagreement within the workers' compensation community about the role that sleep disorders have on rating permanent disability in cases in which the AMA Guides Fifth Edition apply. Hopefully, this article will clear up any misunderstandings about how and when sleep disorders can be ratable and when they cannot.
First of all, sleep that is nocturnal and restful is an ADL pursuant to AMA Guides Chapter 1, Table 1-2, page 4. Although California case law is pending on this issue, common sense tells us that if a person is suffering from a sleep disorder caused by pain from an industrial injury and because sleep is an ADL affected by the injury, then up to 3% WPI can be added to the underlying impairment rating that is causing the pain.
In fact, conservative physicians will indicate in their reports that sleep disturbance is already included within the impairment rating given for the underlying medical condition. Liberal physicians will want to add up to 3%, arguing that the sleep disturbance is not already included in the underlying rating and that since sleep is an ADL listed in the AMA Guides, then up to 3% WPI can be added. Alternatively, liberal physicians will want to rate any sleep disorder that is related to an industrial injury, regardless of its cause, including pain.
Is Sleep Disorder Ratable?
So can a sleep disturbance or disorder be ratable in its own right? The answer is "yes" as long as the cause of the sleep disorder is not pain from an underlying injury. There has to be a direct cause or a link between the industrial injury and the sleep disorder other than pain. But how is a sleep disorder diagnosed?
If you do some medical research on the subject of sleep disorders, you will discover that there is an entire chapter of the DSM-IV TR devoted to sleep disorders—how to diagnose, evaluate and categorize them. In the introduction to sleep disorders, the authors of the DSM-IV state unequivocally that in order to diagnose a sleep disorder, there must be polysomnography performed in a sleep laboratory. The DSM-IV TR categorizes sleep disorders into different types that include forms of insomnia (not enough sleep), hypersomnia (too much sleep) and such disorders as narcolepsy, sleep disorders associated with a psychiatric condition (e.g., clinical depression), sleep disorders associated with a medical condition (e.g., head injury), and substance induced sleep disorders (associated with use of a substance including medications).
The other problem with sleep disorders is that it is very difficult to predict whether a sleep disorder is permanent. We know that long term use of sleep medication is contraindicated; in fact, long term use of sleep medication can cause a substance induced sleep disorder. The argument is that if a patient needs sleep medication, then there is a sleep disorder that needs to be evaluated without use of medication, much like a hearing loss is evaluated without hearing aids.
But once you have a diagnosis of a sleep disorder under the DSM-IV TR, does the injured worker in California have to be evaluated using the 2005 PDRS for psychiatric conditions, with the limitations of Calif. Labor Code § 3208.3, a final GAF score, and a 40% increase for the DFEC adjustment? Remember, Calif. Labor Code § 4660(b)(1) mandates that we use the descriptions and measurements of the AMA Guides to determine permanent disability.
For now, we are taking a strict approach to the issue of when a sleep disorder can be rated in a workers' compensation case. Case law in California may clarify some of the controversies that arise in cases that involve an allegation of a sleep disorder.
AMA Guides Discussion of Sleep Disorders
Since sleep is a function of the brain and central nervous system, we need to look at AMA Guides Chapter 13, The Central and Peripheral Nervous System, Section 13.3c, Arousal and Sleep Disorders, page 317, Table 13-4, which is operative in our cases.
The instructions on page 317 are controlling:
It is expected that the diagnosis of excessive daytime sleepiness has been supported by formal studies in a sleep laboratory. The clinician can evaluate sleepiness with the Epworth Sleepiness Scale, which assesses the likelihood of dozing ... in different situations ... [footnote omitted]
This type of emphatic language in the AMA Guides is precisely the tone used in academic medicine to stress a point. If you ask most clinical practitioners, they will almost uniformly agree that you do not need a polysomnogram in every case in order to diagnose a sleep disorder. In a clinical medical practice, if a patient presents to a psychiatrist or psychologist with objective evidence of depression and an anxious state, with a haggard countenance, it is probable that the patient has a ratable sleep disorder.
However, the AMA Guides do not have any qualifying language to the contrary, and together with the instructions in the DSM-IV TR, if you have a case in which a sleep disorder is suspected or claimed, then a polysomnogram is required. In addition, a Multiple Sleep Latency Test (MSLT) is also recommended to see how a person's sleep latency (how long it takes to fall asleep) affects ADL functioning. These studies generally take 21 consecutive hours in a sleep laboratory and can cost up to $3,600 under the current fee schedule.
There is an argument being made by some physicians that for a Class I or Class II sleep disorder rating under Table 13-4, only an Epworth Sleepiness Scale is needed. But if you read the actual instructions in the AMA Guides page 317, there is no qualifying language when the authors state "it is expected" that sleep studies be conducted in a laboratory. All an Epworth Sleepiness Scale consists of is a self report visual analog scale of eight questions, worth up to 3 points each. If a patient scores 10 points, he or she has a Class II sleep disorder impairment rating under Table 13-4, which is a 10%-29% WPI stand alone impairment rating.
A Class II sleep disorder rating of 10% WPI to 29% WPI involves "Reduced daytime alertness, interferes with ability to perform some ADLs." This covers just about everyone during our MCLE seminars! Realistically, a person who has a sleep disorder has very serious problems—personally, socially and occupationally—and this diagnosis should never be taken lightly. For example, a patient who wakes up once an hour is not getting adequate sleep and usually is visible in that person's countenance. A sleep study in a sleep laboratory will show restorative sleep with deep delta waves and adequate rapid eye movement time (i.e., at least 90 minutes of REM a night). So again, development of the record is essential if an injured worker is claiming a sleep disorder.
PRACTICE POINT: Defense counsel is urged to take the deposition of the injured worker if a sleep disorder is alleged in order to determine whether the condition is caused by pain from an injury. In addition, other causative factors can be discovered, such as allergies to a pillow, an animal that sleeps in the same room, or a spouse or significant other who snores and disrupts the injured worker’s sleep patterns. Remember, 25% of the adult population suffers from a diagnosable sleep disorder. People who live in cities have a greater incidence of sleep disorders than the population who lives in rural areas. So the cause of sleep disorders can be multifactoral. A good benchmark to determine, subjectively, if someone has a sleep disorder is, if he or she wakes up once an hour or is one who regularly sleeps less than 6.5 hours per night.
PRACTICE POINT: Attorneys who represent injured workers have to be circumspect before you allege a sleep disorder since, in many cases, if a person has diminished day time alertness, his or her driver's license may be in jeopardy, and physicians have a statutory duty to report anyone who has a neurological condition that may affect his or her ability to safely operate a motor vehicle.
The instructions on page 317 of the AMA Guides list some examples of medical conditions that can result in a sleep disorder that are ratable under Table 13-4, such as traumatic brain injury, stroke, Alzheimer's Disease, depression and other diseases and disorders. The language on page 317 indicates that sleep disorders can be caused by or linked to other conditions not listed as examples on page 317—i.e., the list on that page is not exclusive.
Notice also that depression is listed on page 317 and sleep disorders can arise from depression. This correlates with the DSM-IV diagnosis of a sleep disorder associated with a psychiatric condition. The question is how much of a person's impairment and effects on ADL functioning is caused by the depression and how much is caused by the sleep disorder? The treating or evaluating physician would have to either give an overall DSM-IV differential diagnosis with the GAF score for both the sleep disorder and the depression together as one rating or a GAF score only for the depression and a separate rating under Table 13-4 for the sleep disorder under the AMA Guides.
Checklist for Sleep Disorder Claims
If there is a claim for sleep disorder in any case, the following is recommended:
1. If a medical doctor suspects a sleep disorder, a referral to a qualified sleep laboratory is in order if the sleep disorder is not caused by pain.
2. If the sleep disorder is caused by pain, then you treat the underlying condition that is causing the pain, i.e., pain management program, more aggressive medical or surgical treatment. Forget about a sleep study. Add up to 3% for pain related impairment using the 2005 PDRS, page 1-12.
3. If a sleep disorder exists, the type and category should be diagnosed by a medical doctor (preferably a psychiatrist) or psychologist using the DSM-IV criteria.
4. An Epworth Sleepiness Scale should be performed at least a few times to obtain consistent results, if possible.
5. An analysis by the medical doctor or psychologist should be made to determine the class of sleep and arousal disorder impairment under Table 13-4.
6. The physician determines the WPI rating within a class, stating how and why the patient falls into a class and rating within that class along with the cause or link of the sleep disorder to the industrial injury.

Conclusion

As you can see, essentially the same WCAB panel came up with opposite results. The take away from this fact is that each case rests on the strength of the medical and lay testimony evidence presented and how thoroughly evaluating and treating physicians describe the reasoning behind their conclusions. In addition, the WCJ must also inform the WCAB panel in his or her WCJ Report and Recommendation on Petition for Reconsideration why the judge relied on particular evidence in making his or her factual and legal findings. That evidence has got to constitute substantial evidence or it will not hold up on Reconsideration.

Can the panel decisions involving two out of three of the same commissioners who come to opposite conclusions be reconciled?

In the Hernandez case, the WCJ very carefully and meticulously articulated the factual evidence, including the Applicant’s credibility concerning her testimony of how her sleep patterns were altered by her industrial injuries. Her sleep disorder did not seem to be directly attributed to pain in her shoulder, but was permanently altered as her industrial cumulative trauma evolved. In contrast, the WCAB panel in Jones linked the Applicant’s sleep disorder directly to the pain she experienced when she turned on her shoulder while trying to sleep. The record was well developed concerning Ms. Hernandez’s pre-injury sleep profile, while it appears it was not well developed in the Jones case.

Shouldn’t both cases involve sleep as an ADL and only a pain related add-on of 3% WPI should have applied? When does sleep as an ADL cross the line and becomes a stand-alone WPI rating? These cases muddy the water on that issue, and the WCAB seems to ignore the difference. Hint: Remember, Table 13-4 is intended to be used for a central nervous system disorder and is not used for a pain related ADL add-on. No one addressed this issue in either case, but it is interesting that the WCAB panel in Jones rejected what appeared to be a positive laboratory sleep study in addition to a positive Epworth Sleep study. This is probably because the sleep disorder was directly linked to the Applicant’s painful shoulder.

Where does this leave us? You need to develop the record and when appropriate obtain a pre-morbid sleep profile and have the treating and evaluating physicians justify why a sleep disorder should be independently rated instead of rated as an ADL 3% pain related add-on. The defense argument is to contend that the sleep disorder is strictly caused by pain and is not a result of a central nervous system disorder, such as a stroke or seizure disorder. The Applicant’s side will then contend that sleep is a central nervous system function and any permanent disruption of sleep also involves the central nervous system, so Table 13-4 is appropriate to use in these cases.

© Copyright 2012 LexisNexis. All rights reserved. This article was excerpted in part from The Lawyer’s Guide to the AMA Guides and Workers’ Compensation (LexisNexis).

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 Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, 2012 Edition