W.C. No. 4-402-262Industrial Claim Appeals Office.
August 25, 2000
FINAL ORDER
The claimant seeks review of an order of ALJ Mattoon (ALJ) which denied whole person medical impairment benefits and approved the respondents’ Final Admission of Liability for scheduled disability benefits. We affirm.
On October 26, 1998, the claimant suffered bilateral upper extremity injuries and was diagnosed with a cumulative trauma disorder (CTD). Ultimately, the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Griffis. In rating the claimant’s permanent medical impairment, Dr. Griffis applied the Cumulative Trauma Disorder Staging Matrix found in the Rules of Procedure, Part XIX(G)(2)(d), 7 Code Colo. Reg. 1101-3 at 126. (See Rule XVII, Exhibit B Medical Treatment Guidelines). The staging matrix allows the physician to consider the impact of the CTD on the claimant’s activities of daily living, as well as the existence of “secondary symptoms” including sleep alteration. Dr. Griffis opined the claimant has a stage II CTD rated at 11 percent permanent impairment of each upper extremity under Table 17, page 48 of the American Medical Association Guides to the Evaluation of Permanent Impairment, Third Edition, Revised (AMA Guides). Dr. Griffis then converted each upper extremity rating to a 7 percent whole person impairment. The respondents filed a Final Admission of Liability for 22 percent combined upper extremity impairment. The claimant objected and requested benefits based upon 14 percent whole person impairment.
The ALJ found the claimant failed to sustain his burden to prove that he sustained functional impairment which would entitle him to whole person impairment benefits. The ALJ also found that the claimant’s sleep problems “do not rise to the level of a functional impairment which was considered to be an element of Dr. Griffis’ permanent impairment rating under the cumulative trauma disorder staging system.” Therefore, the ALJ determined the claimant failed to prove his entitlement to whole person impairment benefits.
Relying on our conclusions in Berumen v. Arapahoe County Social Services, W.C. No. 4-114-314 (April 22, 1999), the claimant argues the ALJ erroneously refused to compensate the upper extremity injuries as a whole person impairment. In support, the claimant contends the record fails to support the ALJ’s finding that his sleep disorder was not considered to be an element of the IME physician’s medical impairment rating. The claimant argues the IME physician expressly listed the activities of daily living which he found impaired, including sleep, and argues that stage II of the CTD rating matrix is not applicable unless the IME physician finds that the CTD has affected the claimant’s “activities of daily living.” Therefore, the claimant argues there is ample evidence the IME physician considered the sleep disorder in rating his permanent impairment.
In Berumen v. Arapahoe County Social Services, supra, we ruled that because a “sleep disorder” is not a scheduled impairment found in § 8-42-107(2), C.R.S. 1999, a bilateral CTD may be compensated as whole person impairment where there is evidence the claimant’s related “sleep disorder” was considered in rating the severity of the claimant’s impairment condition under Table 15 (Entrapment Neuropathy) of the AMA Guides. In Berumen,
we remanded ALJ’s first order to determine whether the claimant suffered 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, we directed the ALJ to determine whether the sleep disorder was considered as one of the factors in rating the claimant’s impairment under Table 15 of the 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’s sleep disorder constituted a functional impairment of bodily parameters not expressed on the schedule of disabilities, and that the sleep disorder was considered by the rating physician in calculating the severity of the claimant’s impairment under Table 15 of the AMA Guides. Consequently, the ALJ awarded permanent partial disability benefits based the rating physician’s whole person rating. We affirmed the ALJ’s second order. Berumen v. Arapahoe County Social Services, W.C. No. 4-114-314 (October 27, 1999)
The respondents appealed our order affirming the ALJ’s second order. In Arapahoe County v. Industrial Claim Appeals Office, (Colo.App. No. 99CA2151, July 13, 2000) (not selected for publication), the court agreed with our conclusion that a sleep disorder must be a functional impairment before the underlying upper extremity injury is compensable as whole person impairment. However, the court also determined the sleep disorder must be ratable under the AMA Guides. Therefore, the court remanded the matter to the ALJ to determine whether to assign a rating for the claimant’s sleep disorder.
Whatever the merits of the claimant’s contention that the ALJ erroneously found Dr. Griffis did not consider the sleep disorder an element of the claimant’s permanent impairment, we do not reach that issue because the claimant agrees that Berumen controls. As stated above, Berumen held that an award of whole person impairment benefits due to a sleep disorder which is secondary to an extremity injury is contingent upon a finding that the sleep disorder constitutes a “functional impairment.” Because the existence of a functional impairment is a question of fact, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999; Strauch v. PSL Swedish Healthcare System, 917 P.2d 366 (Colo.App. 1996).
Here, the claimant testified that pain from the industrial injury affected his sleep. He stated that he is awake for twenty minutes every hour. (Tr. p. 8). However, he did not offer testimony concerning what impact, if any, the interrupted sleep has had on his ability to function. (See Tr. pp. 9-11).
In his report dated September 15, 1999, Dr. Griffis noted the claimant’s complaints of sharp shooting pain in his arms and hands, weakness, numbness and tingling sensations in his hands, and pain with overhead work. Dr. Griffis also documented the claimant’s report of sleep disturbance secondary to pain from the industrial injury. However, Dr. Griffis did not offer an opinion on the affect of the sleep problems. Similarly, Dr. Moore’s December 1, 1998, evaluation includes the claimant’s report of difficulty sleeping due to pain from the industrial injury. However, Dr. Moore’s report does not list any physiological impairment from the sleep problem. Under these circumstances, the ALJ could, and did, reasonably infer that the claimant failed to prove the sleep disorder caused any functional impairment. Moreover, the ALJ’s finding that the claimant failed to prove functional impairment not enumerated on the schedule of disabilities supports the order denying whole person impairment benefits. Section 8-42-107(1).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 20, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed August 25, 2000 to the following parties:
Jim Gephart, 16170 N. Cliff Square, Elbert, CO 80106
Sylvia Salway, Ampex Corporation, 600 Wooten Rd., Colorado Springs, CO 80915-3516
Dawn Kaup, American Protection Insurance Company, P. O. Box 5347, Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John Lebsack, Esq. and Ted A. Krumreich, Esq., 950 17th St., 21st floor, Denver, CO 80202 (For Respondents)
BY: A. Pendroy