Kite fighting, practiced primarily in the East and Brazil, involves attempting to cut your opponent’s line, or ground their kite, to achieve victory and win their paper aircraft. A different kind of kite fighting is taking place in California workers’ compensation evaluations: doctor depositions and trials.

Sean Morrisroe

In the Kite case, EBMUD, Athens Administrators v. Kite (2013) 78 CCC 213 (writ denied), Richard Kite injured both hips, resulting in bilateral hip replacements. The panel QME found 20% WPI for each post-surgical hip. The QME discussed in detail the “synergistic effect” of one hip injury or the other, concluding the most accurate description of injury would result from simple addition, rather than combining the disability.

The WCAB upheld the WCJ: The Court of Appeal denied defendants’ writ. Of course this departure from the Combined Values Chart cost defendants more PD. Understandably, applicant’s attorneys now frequently ask med-legal evaluators to apply Kite.

The key to successful Kite fighting may lie in the favorable panel decision of Borela v. State of California (DMV, 2014 Cal. Wrk. Comp. P.D. LEXIS 217). In that case, the WCJ instructed the DEU to add, rather than combine, the orthopedic (knee, cervical and back) and psychiatric disabilities. On reconsideration, the WCAB distinguished the case from Kite, pointing out that there was insufficient evidence as to why adding, rather than combining, the disabilities would be a more accurate method to describe overall disability.

The WCAB pointed out that there was no detailed “how and why” discussion provided as to why the WCJ’s addition of the disabilities was more accurate.

The Borela theory must be employed in med-legal evaluations, doctor depositions and trials: There is no synergistic effect between the two disabilities. No adequate explanation or substantial medical evidence supporting addition has been provided.

Recent med-legal depositions of a respected orthopedic surgeon in Northern California provide some warning as to how dangerous these Kite fights may be. In one case involving hip and lumbar disabilities, the evaluator testified: “I must acknowledge that in terms of synergism, the lumbar spine and the right hip do act in an interdependent manner. The opposite might be true if we were dealing with the right hand and the right hip, those two would not be synergistic.”

That doctor went on to opine that the back and hip disabilities should be added to achieve maximum PD accuracy. Nevertheless, defendants will still need to maintain the argument that inadequate evidence or rationale exists for adding the disabilities.

By contrast, an attempt to obtain addition of shoulder and psyche disabilities was successfully fought off via a psyche QME supplemental report. The psychiatrist found no need for a Kite addition, in part, because the depression-psyche Whole Person Impairment resulted, or stemmed, from the orthopedic upper extremity injury.

Bottom line: Successful Kite fighting requires arguing that there is no synergism between two disabilities, and there has been no adequate medical “how and why” explanation as to why addition is more accurate then combining via the CVC. Be sure to affix sharp blades and abrasive ground glass to your string, and take down applicant’s Kite, so 50% and 50% do not equal 100%.

Sean W. Morrisroe is a Partner and Assistant Managing Attorney in Bradford & Barthel’s Oakland office. His blog post is republished here with permission. He can be reached via email at smorrisroe@bradfordbarthel.com.