California: Sleep Disorder and the AMA Guides

Here are our headnotes for a recent noteworthy panel decision on sleep disorder and the AMA Guides.

CA - NOTEWORTHY PANEL DECISIONS

Copyright 2023 by Matthew Bender & Company, Inc.

Karen Miller, Applicant v. State of California, Ventura Youth Correctional Facility, legally uninsured, adjusted by, State Compensation Insurance Fund/State Contract Services, Defendants

W.C.A.B. Nos. ADJ8181938, ADJ8702275—WCJ William M. Carero (OXN); WCAB Panel: Chair Zalewski, Commissioners Capurro, Dodd

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 10, 2023

Publication Status:  CAUTION:  This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: The Petition for Reconsideration is denied.

Permanent Disability—Rating—Almaraz/Guzman Analysis—WCAB, denying reconsideration, affirmed WCJ’s finding that permanent disability applicant suffered to cervical spine and lumbar spine from industrial injuries sustained while working as substitute teacher on 1/6/2012 and during period 6/10/2010 through 1/6/2012, was properly rated using AMA Guides’ Range of Motion (ROM) method, rather than Diagnosis-Related Estimate method, based on agreed medical examiner’s (AME) opinion that ROM method best described applicant’s actual spine impairment, and WCAB found that AME’s opinion was sufficient to rebut scheduled rating pursuant to analysis in Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), aff’d sub nom. Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837, which states that strict AMA Guides rating is rebutted by showing that such impairment rating would not accurately reflect extent of employee’s permanent disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[3], 32.01[3][a][ii], [d], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, § 7.12[1]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 4, 7.]

Injury AOE/COE—Diagnosis of Sleep Disorder—Formal Sleep Studies—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant substitute teacher suffered sleep disorder as result of industrial orthopedic injury incurred on 1/6/2012 and during cumulative period 6/10/2010 through 1/6/2012, and determined that panel qualified medical evaluator’s (PQME) opinion that applicant suffered sleep disorder as result of her industrial injuries was substantial evidence to support WCJ’s finding even though PQME’s opinion was based on applicant’s subjective reporting of her sleep problems and not on formal sleep study, when WCAB, relying on The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis), concluded that formal sleep study is not necessary for diagnosis of sleep disorder, and clarified that diagnosis of sleep disorder is different than ratability under AMA Guides, that AMA Guides’ mandate that sleep study be conducted applies to impairment determinations, not diagnosis, and that even were AMA Guides applicable for purpose of diagnosis, deviation from AMA Guides is permitted under Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc opinion), aff’d sub nom. Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a], 32.02[2][a]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4][c]; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Ch. 4.]

Permanent Disability—Rating—Combining Multiple Disabilities—WCAB, denying reconsideration, affirmed WCJ’s finding that applicant’s sleep impairment and orthopedic impairment should be added rather than combined using Combined Values Chart (CVC) to determine applicant’s permanent disability, based on opinion of panel qualified medical evaluator (PQME) that applicant’s sleep disorder acted synergistically with pain from her orthopedic condition to result in greater permanent disability than that calculated using CVC, and that fact that PQME was not sleep expert did not render his opinion regarding adding of disabilities unreliable, because PQME’s analysis was based on effects of sleep deprivation itself. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 8.02[4][d], 32.03A[1]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 7, §§ 7.06[2], 7.11[5], 7.100; The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, Chs. 2, 6, 7.]