It is becoming more common for applicants to claim industrial injuries in the form of sleep disorders. Likewise, we are seeing more doctors provide impairment ratings for such injuries. Two recent WCAB Panel decisions (not citable) reflect the current controversy of 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. Keep in mind that “restful, nocturnal sleep patterns” are an activity of daily living according to Table 1–2 of the Guides.

In the first case, Jones v. City of Long Beach, 2012 Cal. Wrk. Comp. P.D. LEXIS 31, Applicant suffered an admitted right shoulder injury that necessitated surgery. In the surgeon’s permanent and stationary report, he indicated Applicant was having problems sleeping due to pain caused by rolling over onto the injured shoulder. He did not provide a diagnosis of a sleep disorder, but did opine that her sleep condition would be in a Class 1 with a 5% WPI based on physical examination and the Epworth Sleepiness Scale (ESS) score.

An essentially normal sleep study was performed; however, the surgeon found the Applicant exhibited hypersomnia and that her ESS score of greater than 10 suggested sleepiness. In deposition, the surgeon testified that because other sleep disorders such as sleep apnea were eliminated by the sleep study, it was medically probable that a little bit of sleep impairment was reasonable after a major shoulder operation. At trial, the WCJ concluded applicant did have an industrial sleep disorder.

Reconsideration was granted by the WCAB which concluded applicant’s hypersomnia was related to the pain caused by her shoulder injury and was not a separate ratable sleep disorder causing permanent disability. As such, the effects of pain were encompassed within the permanent disability rating for the shoulder. The WCAB found, “[t]o rate a sleep disorder under…the Guides, the cause of the sleep disorder cannot be pain from the underlying injury because pain, and its effects on the worker, is included in the rating of the impairment of the injured body part.”

In another case, Hernandez v. Viam Manufacturing, 2012 Cal. Wrk. Comp. P.D. LEXIS 27, applicant began complaining of sleep disturbance due to stress along with upper extremity pain and hypertension. After having right shoulder surgery, the sleep problems worsened. Here, both the treating physician and PQME found Applicant to be suffering from a sleep disorder. Without the benefit of a sleep study, the treating physician rated Applicant’s sleep disorder at 8% WPI and the PQME assigned a 3% WPI, both based on the ESS. Both doctors also felt a sleep study was not necessary because applicant’s sleep disturbance interfered with her activities of daily living. The treating doctor testified in deposition that applicant had difficulty concentrating, decreased driving impairment, decreased ability to travel, slightly diminished sexual function due to her sleep problem and fatigue. The WCJ found substantial evidence existed to assign an 8% WPI to Applicant’s sleep disorder. Reconsideration was denied.

It appears the distinguishing factors between the divergent rulings in Hernandez and Jones is that in Hernandez, medical evidence was offered showing applicant’s ADLs were affected by her sleep disorder, her complaints of sleep difficulties began prior to surgery, and allegations were made that the sleep disorder was partially due to stress from the job.

According to the AMA Guides, section 13.3c, arousal and sleep disorder impairment may arise from sleep disorders related to the nervous system, mental and behavioral factors including depression, the cardiovascular system and the hematopoietic system. This includes but is not limited to sleep apnea, narcolepsy, restless leg syndrome, brain tumors, multiple system atrophy, Alzheimer’s and Parkinson’s disease. Pain is not included in this section.

A sleep disorder can also be diagnosed using the DSM-IV which requires a polysomnography be performed in a sleep laboratory. Similarly, the AMA Guides state, “It is expected that the diagnosis of excessive daytime sleepiness has been supported by formal studies in a sleep laboratory.” However, many clinical practitioners do not believe these studies are always necessary.

This leaves parties to a workers’ compensation case with no clear answers when it comes to sleep impairment. A thorough deposition is recommended in these cases, to obtain the applicant’s perception of the cause of his or her sleep disorder, testimony regarding when the symptoms began, and whether their problems with sleep have any effect on their activities of daily living. If pain is not believed to be the cause, a sleep study may be necessary. I don’t know about you, but this is making me extremely sleepy!