The case of Miller v. State of California, Ventura Youth Correctional Facility, 2023 Cal. Wrk. Comp. P.D. LEXIS 73, was decided, with an Opinion dated April 10, 2023. [It has been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Though panel decisions are citable authority, they are not binding precedent on all other Appeals Board panels and workers’ compensation judges.]

Applicant, Karen Miller, was a substitute teacher who suffered both a specific industrial injury (01/06/2012) and a cumulative trauma injury (CT: 06/10/2010 – 01/06/2012) to multiple body parts, primarily to lumbar and cervical spine. [It is important to note that both injuries occurred before January 1, 2013.] One of the primary issues for trial was whether she also suffered from a sleep disorder, and if so, is it ratable under the AMA Guides.

First, as we now know, for cases with dates of injury on or after January 1, 2013, Labor Code §4660.1(c)(1) states in part, “… the impairment ratings for sleep dysfunction, … arising out of a compensable physical injury shall not increase. This section does not limit the ability of an injured employee to obtain treatment for sleep dysfunction … that are a consequence of an industrial injury.” Thus, the discussed case and its findings has much less significance now, since there should be very few remaining cases that have dates of injury pre-dating 1/1/13. But having said that, what I find interesting about this case, is the recognition by the WCAB of allowing diagnosis of a sleep disorder by the PQME without a formal study.

The PQME in the Miller case was Timothy C. Reynolds, M.D. He opined that the applicant suffered a sleep disorder based only on her subjective reporting, with no laboratory testing performed.

The WCAB points out page 317 of the AMA Guides, which is the section discussing Arousal and Sleep Disorders. “It is expected that the diagnosis of the excessive daytime sleepiness has been supported by formal studies in a sleep laboratory.” However, it goes on to state, “The clinician can evaluate sleepiness with the Epworth Sleepiness Scale … in different situations: sitting and reading, watching television, sitting in a public place, [etc.]” Further, the “different situations” contemplated for the Epworth Sleepiness Scale are not the ones that could be evaluated in a laboratory.

The WCAB finds that diagnosis must be separated from ratability. They cite, The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (2019) Rassp, Hon. Robert G., Lexis Nexis. Judge Rassp comments, “If you ask most clinical practitioners, they will almost uniformly agree that you do not need a polysomnogram in every case to diagnose a sleep disorder.”

They even discuss the Almaraz/Guzman case law, which permits some level of deviation from the AMA Guides for determination of impairment. They state, “It follows that deviation may also be appropriate for the precatory function of diagnosis.”

Ultimately, the diagnosis of a sleep disorder was found appropriate, even without a formal study. And because this particular case had injuries that pre-dated 1/1/13, an additional rating for the sleep disorder was allowed.

The primary finding of this case is allowing the additional impairment for a sleep disorder. However, I intend on remembering this case for citation on the issue of diagnosis in the future. It seems obvious that an applicant can use this case as a sword to ensure a diagnosis (as a compensable consequence to an industrial injury) and obtain additional medical treatment. It is unclear whether defense can possibly use as a shield, i.e., can a defendant rely on the opinion of an AME/QME in determining a diagnosis does not exist, such as through a questionnaire on the Epworth Sleepiness Scale and thus saving the cost/expense of a formal sleep study? An argument can be made.

The other two interesting aspects of this Opinion, are: 1) they cite The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (2019) Rassp, Hon. Robert G., Lexis Nexis, as the primary source of their Opinion; and 2) they cite the Almaraz/Guzman case law for a finding on a topic other than impairment. But again, this is only a “significant panel decision” that does not provide binding precedent.

American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition, (2001), by Linda Cocchiarella and Gunnar B.J. Anderson

The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (2019) Rassp, Hon. Robert G., Lexis Nexis.

Almaraz v. Environmental Recovery Services, State Compensation Ins. Fund; Guzman v. Milpitas Unified School Dist. PSI, Keenan & Assoc. (2009) 74 CCC 201.