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Yeutter v. Industrial Claim Appeals Office of State

Court of Appeals of Colorado, Fifth Division

April 11, 2019

Joseph Yeutter, Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado; CBW Automation, Inc.; and Pinnacol Assurance, Respondents.

          Industrial Claim Appeals Office of the State of Colorado WC No. 489-594-003

          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

          GROVE JUDGE.

          ¶ 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.

         I. Background

         ¶ 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."

         ¶ 6 Similarly, Dr. Stephen Selkirk, who is board certified in both psychiatry and neurology, reported that claimant

has extensive subjective complaints that are not supported by objective data in the medical record. . . . The complaint of cognitive dysfunction has not been confirmed by a formal neuropsychological battery. Finally, the report of fatigue is subjective. The result of sleep study evaluations and multiple sleep latency tests 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 ...


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