W.C. No. 4-114-314Industrial Claim Appeals Office.
October 27, 1999
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ) which awarded permanent partial disability benefits based on a medical impairment rating of 46 percent of the whole person. The respondents contend the award is in error because a “sleep disorder” is not a ratable impairment which may serve to convert a scheduled impairment rating to a whole person impairment rating. Further, the respondents assert there is insufficient evidence that the claimant’s sleep disorder was considered in rating the claimant’s whole person impairment. We affirm.
This matter was before us previously. Our Order of Remand dated April 22, 1999, contains a statement of the facts, and that statement is incorporated herein. Our order directed the ALJ to determine whether the claimant suffered from a sleep disorder which constituted a “functional impairment” not found on the schedule of disabilities. If the ALJ found the claimant suffered from a sleep disorder amounting to a functional impairment, he was also to determine whether the sleep disorder was considered as one of the elements in rating the claimant’s impairment under Table 15 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition (Revised) (AMA Guides). If the ALJ determined the sleep disorder constituted a functional impairment which was evaluated in rating the claimant’s impairment, the ALJ was directed to convert the claimant’s bilateral upper extremity impairment ratings to a single whole person impairment rating.
On remand, the ALJ found that claimant suffers from a sleep disorder on a daily basis, and is limited to sleeping “only four to six hours per night.” Further, the ALJ determined the sleep disorder constitutes a “functional impairment of bodily parameters not expressed on the schedule of disabilities.” Finally, the ALJ found that Dr. Yarnell considered the claimant’s sleep disorder as an activity of daily living when calculating the severity of the claimant’s impairment under Table 15 of the AMA Guides. Consequently, the ALJ awarded permanent partial disability benefits based on Dr. Yarnell’s 46 percent whole person impairment rating.
I.
On review, the respondents contend the claimant’s sleep disorder is not a separate ratable impairment, but is merely a symptom of the claimant’s bilateral upper extremity impairments. Therefore, the respondents contend the sleep disorder does not remove the bilateral upper extremity impairment ratings from the schedule of disabilities contained in § 8-42-107(2), C.R.S. 1999. We reject this argument.
As we held in our prior order, it is proper for an ALJ to consider whether the claimant’s injury has affected physiological structures beyond the schedule, and the effect of pain beyond the schedule. See Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996); Beck v. Mile Hi Express, Inc., W.C. No. 4-238-483 (February 11, 1997). Here, Dr. Pero provided expert testimony that sleep is a “parameter of human functioning and is considered an activity of daily living.” (Tr. p. 27). Consequently, the record contains substantial evidence from which the ALJ could find the claimant sustained a “functional impairment” of bodily function not listed on the schedule of disabilities.
The respondents’ argument notwithstanding, this case is not controlled by Morris v. Industrial Claim Appeals Office, 942 P.2d 1343 (Colo.App. 1997). Unlike Morris, the claimant here is not attempting to “combine” a scheduled impairment with a separate, unrated whole person impairment for purposes of obtaining a single whole person impairment rating under Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo. 1996). Rather, the sleep disorder was an activity of daily living which Dr. Yarnell was required to consider in rating the claimant’s nerve entrapment under Table 15. Since Dr. Yarnell provided a whole person rating under Table 15, the ALJ was required to determine as a matter of fact whether the claimant sustained functional impairment not listed on the schedule. See Eidy v. Pioneer Freightways, W.C. No. 4-291-940 (August 4, 1998). The respondents’s arguments do not persuade us to the contrary.
II.
The respondents next contend the record contains no evidence that Dr. Yarnell considered the sleep disorder in arriving at the claimant’s whole person impairment rating. They point out that Dr. Yarnell did not explicitly mention the sleep problems in his rating report. We reject this argument.
In his report, Dr. Yarnell stated that he reviewed the claimant’s “extensive chart” and took her history. Dr. Yarnell also stated that he considered the effect of the claimant’s upper extremity problems on her activities of daily living. Dr. Eskestrand’s report of September 27, 1996, mentions the claimant’s condition was affecting all activities of daily living including “sleep.” At the hearing, the claimant testified that the problem with sleep is one of her main difficulties. (Tr. p. 44).
Under these circumstances, the ALJ could properly infer that Dr. Yarnell was aware of the claimant’s sleep disorder because it constituted an activity of daily living, and because Dr. Yarnell took the claimant’s history. Further, the ALJ could infer that Dr. Yarnell reviewed Dr. Eskestrand’s September 27 report which documents the claimant’s sleep condition. Although the ALJ might have drawn other conclusions, we may not interfere with the ALJ’s plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1999.
III.
The respondents’ final contention is that consideration of a sleep disturbance does not require conversion of the upper extremity impairment rating to a single whole person impairment rating. However, because the evidence supports the ALJ’s determination that the claimant has, as a matter of fact, sustained functional impairment beyond that listed on the schedule, the award is correct. Strauch v. PSL Swedish Healthcare System, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 23, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 27, 1999 to the following parties:
Ms. Gloria R. Berumen, 485 Crestmoor Rd., Canon City, CO 81212
Ms. Marilyn Graves, Arapahoe County Personnel Dept., 5334 South Prince St., Littleton, CO 80166
Ms. Judy Montoya, CIRSA, 950 S. Cherry St., Ste. 800, Denver, CO 80222
Occupational Healthcare Mgmt., P.O. Box 173682, Denver, CO 80217-3682
William A. Alexander Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
Anne Smith Myers, Esq., NATHAN, BREMER, DUMM MYERS, P.C., 3900 E. Mexico, Ste. 1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy