Summary
In Berumen, we ruled that a claimant might be entitled to a whole person award for bilateral cumulative trauma disorder where there was evidence the claimant's related "sleep disorder" was considered in rating the severity of the claimant's condition under Table 15 (Entrapment Neuropathy) of the AMA Guides. Because a "sleep disorder" is not a scheduled impairment found in § 8-42-107(2), C.R.S. 2000, we remanded the matter to the ALJ to determine whether the sleep disorder constituted a "functional impairment," and, if so, whether it was considered as an element of the claimant's rating under Table 15.
Summary of this case from In re Robertson, W.C. NoOpinion
W.C. No. 4-114-314
April 22, 1999.
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Stuber (ALJ), insofar as it denied his claim for whole person medical impairment benefits under § 8-42-107(8), C.R.S. 1998. The claimant argues that she has a "ratable" sleep dysfunction which serves to convert her bilateral upper extremity impairment ratings to a single whole person impairment rating for purposes of § 8-42-107(8). We set the order aside and remand for entry of a new order.
The claimant sustained compensable injuries to both upper extremities and has undergone several surgeries. In September 1996 the claimant was examined by Dr. Eskestrand who stated the claimant "has a lot of discomfort with the pain; driving, using the hand, writing, sleep, ADLs [activities of daily living] are all affected." In April 1997 Dr. Eskestrand noted the claimant was having "symptoms in her neck, with radiation to her shoulder and pain in the medial aspect, left and right elbow, in addition to numbness in her fingers, left and right." Utilizing Table 15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides), Dr. Eskestrand opined the claimant has a 25 percent impairment of each upper extremity, which converts to a single 28 percent whole person impairment.
The claimant subsequently underwent a Division-sponsored independent medical examination (IME) by Dr. Yarnell. Dr. Yarnell also used Table 15 of the AMA Guides and opined the claimant has a 25 percent upper extremity impairment on the left, and a 60 percent upper extremity impairment on the right. In so doing, Dr. Yarnell noted that the claimant's right upper extremity "is so affected in ADLs, she has to be rated at severe impairment." Dr. Yarnell converted the claimant's upper extremity impairments to a single 46 percent whole person impairment.
At the hearing, the claimant presented the testimony of Dr. Pero. Dr. Pero testified that if the claimant's bilateral cumulative trauma disorder were rated under Rule of Procedure XIX (G), 7 Code Colo. Reg. 1101-3 at 126-127, it would be proper to consider the claimant's sleep dysfunction in determining the severity or degree of impairment. This is true because Rule XIX (G)(2)(b) refers to the Cumulative Trauma Disorder Staging Matrix contained in Rule XVII, Exhibit B of the Medical Treatment Guidelines. The matrix treats "sleep alteration" as a "secondary symptom" relevant to determining the stage (severity) of a cumulative trauma disorder. (Tr. p. 25-26)
Dr. Pero also testified that rating entrapment neuropathy under Table 15 of the AMA Guides permits the rating physician to determine whether the impairment is mild, moderate, or severe. Dr. Pero stated that, like Rule XIX (G), Table 15 contemplates that the physician will evaluate the degree to which the entrapment neuropathy is interfering with the claimant's ADLs, including sleep. (Tr. p. 26-27). However, Table 15 does not explicitly direct the physician to consider ADLs. (Tr. p. 26).
Dr. Pero also testified that he did not examine the claimant or attempt to rate her impairment. However, he did review the ratings issued by Dr. Eskestrand and Dr. Yarnell, and stated that these two physicians applied Table 15 of the AMA Guides. Further, Dr. Pero admitted there was nothing improper in applying Table 15 rather than the "more complex system" established by Rule XIX. (Tr. p. 35).
In determining the claimant's entitlement to benefits, the ALJ found the claimant has difficulty using her upper extremities, and that she has a "sleep disorder" which has been "particularly significant over the last one and one-half years." However, the ALJ also found that the claimant's "functional impairment is limited to her arms as measured at the shoulders," and "there are no working unit ratings of medical impairment in the record." Consequently, the ALJ concluded the claimant failed to demonstrate by a preponderance of the evidence that she has functional impairment not expressed in the schedule of disabilities, and awarded benefits based on a 25 percent impairment of the left upper extremity and a 60 percent impairment of the right upper extremity.
On review, the claimant argues that where, as here, the extremity ratings include a "medically documented sleep dysfunction," the extremity ratings must be converted to a single whole person rating for purposes of permanent partial disability benefits. The claimant reasons that because Table 15, like Rule XIX, requires the rating physician to consider the extent to which entrapment neuropathy has impaired ADLs, he has proven the existence of a whole person impairment. Because one of the ALJ's findings of fact is not supported by the evidence, and because he may have misapplied the law, we remand for entry of a new order.
Initially, we note that the ALJ's findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Thus, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). However, a finding that there is "no evidence" to support a proposition may not be read as a finding that there is no "credible" evidence to support the proposition. Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988).
Our analysis of the claimant's argument requires consideration of two lines of cases which delineate whether a claimant's injuries are compensated under the schedule of disabilities found in § 8-42-107(2), C.R.S. 1998, or compensated under the whole person provisions of § 8-42-107(8)(c), C.R.S. 1998. he first line of cases establishes that the question of whether a claimant's upper extremity injury is rated on the schedule or as a whole person is one of fact for determination by the ALJ. In resolving this question the ALJ must determine the situs of the claimant's "functional impairment," and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 803 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996). In applying this test to cases involving upper extremity injuries, we have held that it is proper for an ALJ to consider whether the claimant's injury has affected physiological structures beyond the arm, as well as the effect of pain beyond the arm. Eg., Beck v. Mile Hi Express, Inc., W.C. No. 4-238-483 (February 11, 1997). Further, the AMA Guides' definition of where the arm ends and the torso begins is not decisive in deciding whether an upper extremity injury is on or off the schedule. Nevertheless, the ALJ may consider a physician's rating under the AMA Guides in determining the situs of the functional impairment. Strauch v. PSL Swedish Healthcare System, supra.
A second line of cases exemplified by Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997), holds that an extremity injury which is compensated under the schedule may not be "combined with" a separate non-scheduled injury for purposes of creating a single whole person impairment unless the non-scheduled injury is "ratable" under the AMA Guides. In Morris, the court held that a scheduled extremity impairment could not be combined with a "functional psychiatric impairment" to create a single whole person impairment because the psychiatric impairment was not ratable.
As the claimant recognizes, we have issued a series of decisions applying the Morris rationale to reject the argument that an unrated "sleep disorder" requires an ALJ to convert a claimant's extremity rating to a whole person rating under § 8-42-107 (8) (c). Eg., Wallace v. Home Base, W.C. No. 4-210-135 (December 11, 1997); Divido v. John C. Ley, D.D.S., P.C., W.C. No. 4-288-357 (November 26, 1997). Our review of the cases involving sleep disorders reveals that in virtually every instance there was no evidence that a physician considered the claimant's sleep disorder "ratable" under Table 15, or any other method of rating prescribed by the AMA Guides. See Divido v. John C. Ley, D.D.S., P.C., supra ("the only physician who provided a rating did not mention any sleep disorder, nor did he give any rating for psychological impairment").
Significantly, we have distinguished Morris in a line of cases where the claimant sustained a shoulder injury and documented functional impairment, such as pain and muscle spasms, in physiological structures proximal to the arm. In these cases the rating physician issued an upper extremity impairment rating which was converted to a single whole person rating. We concluded that Morris was distinguishable because "there was no attempt to `combine' the claimant's upper extremity injury with a separate and unrated functional impairment of the whole person for purposes of creating a single whole person impairment rating." Eg., Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998). The Court of Appeals reached much the same conclusion in the unpublished case of Phase II Co. v. Industrial Claim Appeals Office, (Colo.App. No. 97CA2099, September 3, 1998) (not selected for publication).
Applying these principles here, we note that there is some evidence in the record that the claimant's sleep disorder constituted a "ratable" component of her upper extremity impairments. Although neither of the rating physicians explicitly mentions the sleep disorder in his final rating report, Dr. Yarnell did remark that the claimant was "so affected in ADLs" that he considered her right upper extremity impairment to be "severe" under Table 15 of the AMA Guides. This evidence, taken with Dr. Eskestrand's mention of sleep difficulties in connection with the claimant's ADLs, supports an inference that the claimant's sleep disorder constituted a ratable element of her overall upper extremity impairment. This inference is further supported by Dr. Pero who testified that sleep is an ADL which may be considered in rating the severity of an upper extremity impairment under Table 15. Thus, in contrast to prior sleep disorder cases, there is evidence from which the ALJ could find that the sleep disorder was rated as part of the claimant's upper extremity impairment. Under these circumstances, it would not be necessary to "combine" the sleep impairment with the upper extremity impairments to arrive at an overall whole person impairment rating. Eidy v. Pioneer Freightways, supra.
Further, the ALJ erroneously found that "there are no working unit ratings of medical impairment in the record." To the contrary, Dr. Eskestrand and Dr. Yarnell both converted their extremity ratings to whole person ratings in accordance with the provisions of the AMA Guides. Consequently, these ratings may be interpreted as some evidence that the claimant sustained "functional impairment" beyond the schedule, and that the claimant's overall impairment is ratable as a whole person in accordance with the AMA Guides. Strauch v. PSL Swedish Healthcare System, supra. Because the ALJ apparently did not recognize the existence of the whole person ratings, we cannot say how he would have weighed the medical evidence of functional impairment stemming from the sleep disorder.
On remand, the ALJ shall determine as a matter of fact whether the claimant's sleep disorder constitutes a "functional impairment" not found on the schedule. If the ALJ finds that such functional impairment exists, he shall also determine whether the sleep disorder was considered as an element of the claimant's extremity ratings under Table 15. If so, the ALJ shall convert the claimant's upper extremity impairment ratings to a single whole person impairment rating in accordance with the evidence he finds persuasive. Strauch v. PSL Swedish Healthcare System, supra, Eidy v. Pioneer Freightways, supra. We should not be understood as expressing any opinion concerning the existence of functional impairment caused by the sleep disorder or whether the sleep disorder was a rated component of the upper extremity impairments.
IT IS THEREFORE ORDERED that the ALJ's order dated May 7, 1998, is set aside, and matters remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain ______________________________ Kathy E. Dean
Copies of this decision were mailed APRIL 22, 1999 to the following parties:
Gloria Berumen, 485 Crestmoor Rd., Canon City, CO 81212
Marilyn Tripp, Arapahoe County Personnel Dept., 5334 S. Prince St., Littleton, CO 80166
Judy Montoya, CIRSA, 950 S. Cherry St., #800, Denver, CO 80222
Occupational Health Management Services, P. O. Box 173682, Denver, CO 80217-3682
William A. Alexander, Jr., Esq., 3608 N. Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
By: AP