ADJ4050214 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by defendant challenging the substantial medical evidence of sleep impairment rating by AME Dr. Reynolds, denied by WCAB panel.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Medical treatment / UR / IMRApplicant prevailednervous system/psyche · sleep disorder · arousal disorder

The AME Dr. Reynolds used clinical judgment to rate fibromyalgia-related sleep impairment by analogy under AMA Guides, supported by 15 years of consistent medical-legal evaluations and documented sleep dysfunction, despite lack of polysomnography.

From the decision · page 3This matter involves three injuries dating back to 2004 and 2005. The parties have selected Agreed Medical Examiners (AMEs) in orthopedics and internal medicine, and a Qualified Medical Examiner (QME) in psychiatry. Timothy Reynolds, M.D. has acted as the internal medicine AME on this case for more than 15 years, has evaluated the applicant on multiple occasions, and has opined that the applicant has industrial fibromyalgia manifesting in pain and sleep dysfunction. In a Findings of Fact and Award served on March 29, 2021, the court found that the reporting of the AME in internal medicine constituted substantial medical evidence, including a rating of the fibromyalgia by analogy to sleep disorder. Defendant is aggrieved by this finding, and in a timely, verified Petition for Reconsideration dated April 19, 2021 avers the conclusions of Dr. Reynolds assigning fibromyalgia by analogy to sleep dysfunction do not constitute substantial medical evidence because there is no documented sleep study in the record to support the Class II sleep and arousal disorder.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

AME Dr. Reynolds diagnosed industrial fibromyalgia with sleep impairment rated by analogy as 20% whole person impairment under AMA Guides.

Favours Applicant prevailed

This diagnosis and rating formed the basis for the permanent disability award and was challenged by defendant.

From the decision · page 6Here, AME Dr. Reynolds has diagnosed industrial fibromyalgia, a condition not addressed in the AMA Guides. Dr. Reynolds describes ratable impairment as follows:

The record contains 15 years of consistent medical-legal evaluations documenting significant sleep disturbance and daytime somnolence.

Favours Applicant prevailed

This extensive history supported the substantial medical evidence finding despite lack of polysomnography.

From the decision · page 6However, the undersigned would respectfully submit that Dr. Reynolds' opinions are supported in the extensive record of multi-specialty medical-legal evaluations, diagnosis of nonindustrial sleep apnea with a prescription sleep appliance, and consistent reporting from the applicant. As far back as 2006, applicant complained of severely interrupted sleep, with the applicant resorting to taking naps during his lunch break until he stopped working in 2005. At the time of the initial evaluation with Dr. Reynolds in 2006, the applicant was sleeping "one to three hours per night with interruptions and naps off and on throughout the day."4 This echoes the applicant's reporting to orthopedic AME Dr. Peter Newton, who noted ongoing sleep disturbance dated back to at least 2002.5 The applicant further reported marked disturbance of" sleep initiation and maintenance" to prior psychiatric AME Dr. David Freeman in 2009, by which time the applicant had been issued a CPAP machine and diagnosed with chronic obstructive sleep apnea.6

Defendant did not challenge the AME opinions on sleep impairment by cross-examination or supplemental reports.

Favours Applicant prevailed

Lack of challenge to the AME opinions reinforced their credibility and weight.

From the decision · page 8Moreover, Dr. Reynolds has been the parties' chosen AME for more than 15 years, and has evaluated the applicant and authored multiple medical-legal reports. It is presumed that that the agreed medical evaluator was chosen by the parties because of his expertise and neutrality. "[W]orkers' compensation law favors agreed medical [evaluators] in resolving medical disputes fairly and expeditiously."9 Therefore, an agreed medical evaluator's opinion should ordinarily be followed unless there is good reason to find that opinion unpersuasive.10 It is further noted that the defendant has consistently declined to challenge any of the AME opinions regarding sleep impairment via cross-examination of the AME or by request for supplemental reporting.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERelied upon · internal medicine

Diagnosed industrial fibromyalgia with sleep impairment rated by analogy as 20% whole person impairment under AMA Guides, supported by clinical judgment and extensive medical-legal history.

Dr. Reynolds used clinical judgment to rate fibromyalgia-related sleep impairment by analogy under AMA Guides, supported by 15 years of consistent medical-legal evaluations and documented sleep dysfunction.

From the decision · page 3This matter involves three injuries dating back to 2004 and 2005. The parties have selected Agreed Medical Examiners (AMEs) in orthopedics and internal medicine, and a Qualified Medical Examiner (QME) in psychiatry. Timothy Reynolds, M.D. has acted as the internal medicine AME on this case for more than 15 years, has evaluated the applicant on multiple occasions, and has opined that the applicant has industrial fibromyalgia manifesting in pain and sleep dysfunction. In a Findings of Fact and Award served on March 29, 2021, the court found that the reporting of the AME in internal medicine constituted substantial medical evidence, including a rating of the fibromyalgia by analogy to sleep disorder. Defendant is aggrieved by this finding, and in a timely, verified Petition for Reconsideration dated April 19, 2021 avers the conclusions of Dr. Reynolds assigning fibromyalgia by analogy to sleep dysfunction do not constitute substantial medical evidence because there is no documented sleep study in the record to support the Class II sleep and arousal disorder.

AMEGiven great weight · orthopedics

Provided impairment ratings for widespread orthopedic conditions subsuming fibromyalgia pain component; documented ongoing sleep disturbance since 2002.

Orthopedic AME Newton's findings support the presence of sleep disturbance consistent with fibromyalgia impairment.

From the decision · page 6Based on my judgment and experience the widespread pain component of his fibromyalgia syndrome is subsumed within Dr. Newton's impairment ratings for widespread orthopedic conditions.

QMEGiven great weight · psychiatry

Confirmed diagnosis of chronic obstructive sleep apnea and documented marked disturbance of sleep initiation and maintenance.

Psychiatry QME Cohen's findings corroborate the sleep dysfunction documented by other evaluators.

From the decision · page 66 Ex. 15, March 18, 2020 report of psychiatric QME Gregory Cohen, M.D. at p.14.

AMEGiven great weight · psychiatry

Reported marked disturbance of sleep initiation and maintenance in 2009, with diagnosis of chronic obstructive sleep apnea and CPAP machine issuance.

Early psychiatric AME Freeman's findings support the documented history of sleep disturbance.

From the decision · page 6However, the undersigned would respectfully submit that Dr. Reynolds' opinions are supported in the extensive record of multi-specialty medical-legal evaluations, diagnosis of nonindustrial sleep apnea with a prescription sleep appliance, and consistent reporting from the applicant. As far back as 2006, applicant complained of severely interrupted sleep, with the applicant resorting to taking naps during his lunch break until he stopped working in 2005. At the time of the initial evaluation with Dr. Reynolds in 2006, the applicant was sleeping "one to three hours per night with interruptions and naps off and on throughout the day."4 This echoes the applicant's reporting to orthopedic AME Dr. Peter Newton, who noted ongoing sleep disturbance dated back to at least 2002.5 The applicant further reported marked disturbance of" sleep initiation and maintenance" to prior psychiatric AME Dr. David Freeman in 2009, by which time the applicant had been issued a CPAP machine and diagnosed with chronic obstructive sleep apnea.6

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code 4660

Labor Code 4660 requires incorporation of AMA Guides for impairment ratings but allows clinical judgment for unlisted conditions.

The AMA Guides cannot rate every condition; clinical judgment is necessary for complex or poorly understood syndromes like fibromyalgia.

From the decision · page 4Labor Code § 4660 provides that "the nature of the physical injury or disfigurement shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)." However, the AMA Guides cannot provide for every possible diagnosis and disability:

AMA Guides 5th Edition

AMA Guides 5th Edition permits clinical judgment and analogy for conditions not directly ratable.

Physicians may use clinical judgment to rate impairments not specifically addressed in the Guides, comparing to similar conditions.

From the decision · page 4The Guides itself recognizes that it cannot anticipate and describe every impairment that may be experienced by injured employees. The authors repeatedly caution that notwithstanding its "framework for evaluating new or complex conditions," the "range, evolution, and discovery of new medical conditions" preclude ratings for every possible impairment. (Guides, § 1.5, p. 11.) The Guides ratings do provide a standardized basis for reporting the degree of impairment, but those are "consensus-derived estimates," and some of the given percentages are supported by only limited research data. (Guides, pp. 4, 5.) The Guides also cannot rate syndromes that are "poorly understood and are manifested only by subjective symptoms." (Ibid.)

Milpitas Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (2010) 187 Cal. App. 4th 808

Milpitas Unified Sch. Dist. v. Workers' Comp. Appeals Bd. (2010) 187 Cal. App. 4th 808 supports use of clinical judgment for impairment ratings beyond strict AMA Guides criteria.

The court rejected the requirement for strict adherence to AMA Guides for every condition, allowing clinical judgment.

From the decision · page 5Thus, where a condition or diagnosis is not addressed in the AMA Guides, the evaluating physician may use their clinical judgement to find analogous impairment from within the guides, especially where the syndrome in question is poorly understood and manifests with subjective symptoms. Moreover, the California Court of Appeal has specifically rejected the contention that reform legislation bars impairment arising out of pain without objective factors not otherwise specified in the AMA Guides:

ADJ4050214 · June 18, 2021

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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