Yeutter v. Indus. Claim Appeals Office of Colo., Court of Appeals No. 18CA0498
| Decision Date | 11 April 2019 |
| Docket Number | Court of Appeals No. 18CA0498 |
| Citation | 487 P.3d 1007 |
| Parties | Joseph YEUTTER, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado; CBW Automation, Inc.; and Pinnacol Assurance, Respondents. |
| Court | Colorado Court of Appeals |
Eley Law Firm, LLC, Scott Eley, Denver, Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Harvey D. Flewelling, Denver, Colorado, for Respondents Pinnacol Assurance and CBW Automation, Inc.
Opinion by JUDGE GROVE
¶ 1 Claimant, Joseph Yeutter, seeks review of a final order of the Industrial Claim Appeals Office (Panel) affirming the decision of an administrative law judge (ALJ) denying and dismissing his claims for permanent total disability (PTD) and maintenance medical benefits. We affirm.
¶ 2 Claimant worked as a controls engineer for employer, CBW Automation, Inc. In August 2012, he sustained admitted, serious injuries in a work-related accident when he was struck in the head and shoulder and knocked to the ground by a robotic arm. His injuries included "a skull fracture
, vestibular ear and inner ear nerve damage, slap tear in [the] shoulder, broken arm," and fractures to "both of his orbital sockets." He returned to work after two weeks but voluntarily resigned two months later; he then commenced employment as a mechanical engineer for BW Container Systems, a position he held until February 2015. At BW Container, he typically worked nine or ten hours per day "with weekends and sometimes evenings after work."
¶ 3 More than a year after the incident, claimant's physical injuries had "stopped hurting so much," but he felt fatigued. In July 2014, one of his authorized treating physicians, Dr. Carol Newlin, prescribed Adderall and Ritalin
as stimulants to help him "get through [his] day." A sleep study conducted one month later by another treating physician, Dr. Mark Neagle, revealed sleep patterns consistent with narcolepsy. A professor of psychiatry at the University of Colorado, Dr. Martin Reite, corroborated the narcolepsy diagnosis, stating that "as a result of my evaluation I have concluded that [claimant] has a sleep disorder consisting of Type 1 Narcolepsy, most likely post-traumatic in origin." Dr. Reite went on to note that "the cause of narcolepsy is varied, can be idiopathic (onset with no obvious cause), familial (genetic influence and running in families), or triggered by viral infection or head trauma (as in [claimant's] case)." Finally, Dr. Reite opined that claimant "is seriously disabled as a result of his narcolepsy and other trauma related conditions, and his prognosis at this time is guarded."
¶ 4 On August 26, 2015, claimant was placed at maximum medical improvement (MMI) by his primary authorized treating physician, Dr. Kevin O'Toole. Although claimant's skull and facial fractures had healed, Dr. O'Toole assessed claimant as suffering from "narcolepsy
, hypersomnolence, probably related to traumatic brain injury, managed with stimulant medication." He recommended that claimant "continue his current medications." Dr. O'Toole also opined that claimant could not work and should be off work indefinitely. He rated claimant's permanent impairment at 67% of the whole person, which he calculated by combining impairment ratings for claimant's mental health, sleep and arousal disorders, and vision impairment.
¶ 5 Three mental health and medical experts retained by employer disagreed with Dr. O'Toole’s assessment, however. Psychiatrist Dr. Susan Rosenfeld opined that the "reported symptoms, clinical findings and treatment plan do not support functional impairment from a psychiatric condition which translates into restrictions or limitations."
are not available for review and therefore the presence of narcolepsy or post-traumatic narcolepsy cannot be objectively confirmed.
Based on his review of the medical records, Dr. Selkirk concluded that claimant had "no impairments from a neurological perspective, and thus, no restrictions or limitations are supported."
¶ 7 Finally, Dr. Kathleen D'Angelo, who specializes in occupational medicine, independently examined claimant and conducted a thorough medical records review. She expressly noted that a second sleep study confirmed claimant's narcolepsy
diagnosis, but she was skeptical that it was work-related because available medical literature had not demonstrated a causative connection between head trauma and narcolepsy. To further support her conclusion that claimant's narcolepsy was not related to his work injury, she explained that the lengthy temporal gap between claimant's injury and the onset of his narcolepsy substantially lessened the likelihood of a causal connection between the two.
¶ 8 After employer obtained these independent medical examination reports, claimant underwent a division-sponsored independent medical examination (DIME) with Dr. Albert Hattem. Dr. Hattem agreed with Dr. O'Toole that claimant reached MMI on August 26, 2015. But, he assigned claimant a lower impairment rating—39% of the whole person—than Dr. O'Toole had assigned because he felt the brain impairment calculated by Dr. O'Toole was too high given that claimant "does not require assistance with activities of daily living." Dr. Hattem was less certain about the cause of claimant's narcolepsy
, though, and deferred to claimant's treating physicians on the question. He stated as follows:
This is a very difficult case in terms of causation because the examinee's condition (post traumatic narcolepsy
) is very rare and did not become evident until more than one year after the August 24, 2012 injury. After the injury and prior to first reporting fatigue in November 2013 the examinee had been working full duty as an engineer for two different employers sequentially—work that would be considered very cognitively demanding....
Because I have no prior experience with this type of condition, I must defer to all of the specialists who previously evaluated [claimant].... All of these physicians opined that the examinee's narcolepsy is related to the August 2012 work injury despite the latency between the injury and the onset of this disorder.
¶ 9 Employer did not contest Dr. Hattem's DIME opinions. Rather, it filed a final admission of liability (FAL) accepting Dr. Hattem's MMI date of August 26, 2015, and admitting claimant's entitlement to permanent partial disability (PPD) benefits based on the 39% whole person impairment rating, which it calculated to equal $ 127,502.69. However, employer did not admit liability for any continuing post-MMI maintenance medical benefits.
¶ 10 Thereafter, claimant filed an application for a hearing seeking PTD benefits and future maintenance medical benefits.
¶ 11 At the ensuing hearings, the parties offered contradictory evidence of claimant's need for PTD benefits. Katie Montoya, a vocational consultant, testified on claimant's behalf. She opined that although claimant had no work restrictions "from a physical standpoint," she agreed with Dr. O'Toole’s opinion that claimant's issues with "wakefulness, the capacity to be productive day in and day out and what would be necessary pharmacologically" for him to maintain employment, made him incapable "of returning to work at this time."
¶ 12 In contrast, employer's retained vocational rehabilitation counselor, Roger Ryan, opined that claimant "is able to work and earn a wage." Mr. Ryan cited to claimant's computer adeptness, mechanical engineering experience, and military background as transferable skills upon which claimant could draw to find gainful employment. Mr. Ryan identified several occupations matching claimant's abilities, including mechanical drafter, information clerk, salesperson, cashier, telephone solicitor, tutor, appointment clerk, dispatcher, night auditor, collection clerk, unarmed security guard, and production assembler.
¶ 13 Employer also introduced the opinions of two additional independent medical examiners to support its position that claimant was neither permanently totally disabled nor required ongoing maintenance medical care. These independent medical examiners, psychiatrist Dr. Robert Kleinman and psychologist Dr. Susan Kenneally, both questioned the necessity of claimant receiving PTD and maintenance medical benefits. Dr. Kleinman, in particular, doubted the severity of claimant's narcolepsy
, and suggested that claimant was exaggerating the extent of his disability. He also opined that claimant "does not have restrictions or limitation" that would impede his ability to work.
¶ 14 Dr. Kenneally, in turn, questioned the causal connection between claimant's admitted work-related injury and his accurately diagnosed narcolepsy
. She testified that there is a dearth of medical research linking narcolepsy and traumatic brain injury (TBI), noting that there is a lack of "reliable, repeatable markers for narcolepsy, and we certainly have no way to discriminate if it is caused by traumatic brain injury, it is caused by genetic history, it is caused by other trauma." In addition to "the science [being] out" on this question, she explained that the "late onset" of claimant's narcoleptic condition made it "highly atypical and would argue against it being caused by or related to the TBI." Moreover, the battery of tests Dr. Kenneally administered to claimant revealed that although he "clearly" suffered a TBI as a result of his workplace accident, "current testing found no pattern of persistent deficits consistent with the brain injury findings at the time of the injury."
¶ 15 After two...
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