Michael Costello, partner at the Santa Ana office of Adelson, Testan, Brundo and Jimenez, recently contributed to ATB Law’s educational seminar series with an overview of sleep deprivation add ons in worker’s compensation cases. Sleep deprivation is not a condition, it is a symptom. The AMA Guide helps determine causes of sleep impairment, and whether it is work related. Depositions can uncover pre-existing sleep disorders to help defend against workers’ compensation claims, especially depositions with significant others. Several possible workers’ compensation defenses arise here:
- Six month rule
- Post termination
- Good faith personnel action
Understanding Sleep Deprivation & Workers’ Compensation Defense Strategies
Risk factors that increase the risk of sleep deprivation include morbid obesity, smoking, and neurological disorders. Causation is critical to prove. It can be neurological, pain related, psychological in nature. The question is whether this is a direct cause or a compensable consequence arising from a claim, and defendants must ask questions to determine this.
The doctor’s report should thoroughly cover all aspects of reporting and follow the rules covered under the AMA Guide. Defendants should review medical reports for accuracy; oftentimes, the consulting doctor takes a patient’s word for the condition without a full history, and this can be defended against based on inconsistencies or incomplete data. Next, a utilization review should look at whether there are enough facts in the report to determine causation. A consult after certification will determine causation, but it is not yet time to pay for testing if the sleep deprivation is related to an underlying cause such as pain. Only after maximum medical improvement for an injury is reached should the sleep impairment be revisited to determine whether it is a compensable injury.
Any daily living impairment must be proved through a multi-sleep latency test following a polysomnogram. California’s workers compensation currently rejects impairment under solely an Epworth test as it is an informal test and not objective; Adelson, Testan, Brundo and Jimenez recommends that defendants get the raw data of the MSLT and PSG before paying for any impairment, and should not authorize MSLT and PSG based on the applicant’s or doctor’s request before MMI is reached.
Follow Adelson, Testan, Brundo and Jimenez’ YouTube Channel for more workers’ compensation defense educational seminars, or contact ATB Law to learn more.