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Kamin and Larres: En Banc Decision Clarifies Kite Rebuttals

  • State: California
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The Workers’ Compensation Appeals Board has issued a new en banc decision clarifying how applicants’ attorneys may rebut the Permanent Disability Rating Schedule to add PD and get higher monetary values.

John P. Kamin

John P. Kamin

The commissioners issued a new en banc decision in the case of Vigil v. County of Kern on June 10. The board ruled that although the PDRS is prima facie evidence of applicants’ levels of permanent disability, it may be rebutted by applicant’s attorneys seeking to increase PD.

The key to understanding this decision is having a comprehension of the Combined Values Chart and the decision in Athens Administrators v. WCAB (Kite). In Kite, the board ruled that after one has successfully rebutted the PDRS, one may add disabilities rather than using the Combined Values Chart.

For instance, let’s take two PD ratings of 10% and 8%. In this example:

  • Using the Combined Values Chart, 10 c 8 = 17% PD worth $17,545.
  • Using Kite’s call to add the disabilities, 10 8 = 18% PD worth $18,995.
Louis A. Larres

Louis A. Larres

As we have discussed in numerous blog entries, the PDRS is presumed to be correct, and the key to rebutting Kite was having a doctor provide a very detailed explanation about how two injuries to separate body parts had a “synergistic effect.” The WCAB’s decision in Vigil expanded upon that and provided two ways to get to a Kite rebuttal.

Get to Kite's addition method

While the board collectively calls out doctors who invoke Kite without offering any analysis or simply throwing around the word “synergy,” the board offers two paths to a Kite analysis. The WCAB ruled that one can add PD when an applicant has proven that either:

  • There is no overlap between the activities of daily living among the multiple body parts rated.
  • There is overlap among the ADLs, but the overlap actually increases or amplifies the impact on the overlapping ADLs.

The board strongly clarified in its decision that these methods “must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions.”

Kenny Tolbert, an expert rater at Bradford & Barthel, noted in a 2019 blog entry on Kite that many doctors simply fail to do this. A paragraph saying “Applicant has rebutted Kite and I think adding the PD for the wrist and the foot would be more appropriate” is incomplete, speculative and conclusory. That would not survive the level of scrutiny called for by the WCAB’s Escobedo decision.

Simply put, defendants can and should combat new attempts to get Kite rebuttals by questioning the attempts to rebut the PDRS and impacts on ADLs. With these two methods, the board has promulgated an exception that tends to swallow the rule. Bear in mind that the CVC, as with the rest of the PDRS, is statutorily presumed correct. Yet, the words “presumption” and “presumed” are nowhere to be found in the board’s analysis.

The board’s “no overlap” or “overlap with amplification” only serves to make it easier for an applicant to rebut the schedule. In other words, if an applicant can’t get the doctor to show a lack of overlap, he or she can go the other route and show the impact on ADL’s overlap to such an extent that the impact is greater than the single impairment standing alone. Thus, while the CVC is designed to address overlap (presumably all overlap, not just those that are less than what some physician deems greater than normal), its use is essentially relegated to the whims of the evaluating physician as to what constitutes “greater than normal.”

The takeaway from this is that depositions and sub rosa are now more crucial than ever. These are the only ways a defendant can directly challenge and assess the impact of the various injuries on ADLs to rebut a doctor’s use of Kite to add permanent disabilities.

It ain't over yet

While the en banc decision was issued recently, that is not the end of the story. The defendant in the case has several options:

  • It can ask the WCAB to reconsider the decision, which is unlikely to change its opinion.
  • It can file a petition for a writ of review with California’s 5th District Court of Appeal. (In this scenario, the 5th DCA could either grant or deny review.)
  • It can accept the decision.

We will have to wait and see what Kern County does. The timelines for each of these options vary, but we should have a better idea of what the defendant intends to do in the next two months.

Conclusion

This decision still applies to only a minority of cases. In the majority of cases, the PDRS should apply and the CVC chart should be used to combine PD ratings.

Defendants should strongly question whether doctors who seek to use Kite are abiding by the Escobedo decision and should continue to seek out objective evidence of ADLs, including sub rosa, social media checks and subpoenaed records.

Louis Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office and the director of the firm’s Appellate Division. John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.

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