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).]
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)
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.
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