Following the 2013 decision in Kite v. Athens Administrators (2013) 78 CCC 213 (writ denied), applicant’s attorneys have attempted to take full advantage of this method of increasing total permanent disability ratings without increasing the level of actual impairment allocated to their clients.

Zane Uribarri

The way they have been doing this is by asking doctors to add permanent disability ratings for various body parts, rather than combining the PD ratings with the Combined Value Chart (CVC), as indicated in the 2005 Permanent Disability Rating Schedule (PDRS).

This is important for defendants because combining PD values via the CVC chart tends to result in lower PD ratings. The CVC chart is part of the 2005 PDRS, which is presumed by California law to be correct.

Also in 2013, a judge in the case of Lotspike v. J. Jill (2013 Cal. Wrk. Comp. PD LEXIS 564) found that the CVC did not need to be employed where an applicant had both orthopedic and psychiatric permanent disability. The judge’s conclusion was based upon the judge’s own assessment of the medical evidence.

Jemma Uribarri

On review, the Workers' Compensation Appeals Board found that while both agreed medical evaluators “note[d] the interplay between applicant’s psychiatric and orthopedic conditions, neither of the physicians provide[d] an opinion whether adding the orthopedic and psychiatric permanent disability would be a more accurate measure of applicant's overall level of permanent disability.”

The board therefore found the record to be lacking substantial medical evidence on the issue, and returned the matter to the trial level for development of the record.

In contrast, in Taina v. County of Santa Clara/Valley Medical Center (2018 CWCR 46:214) the board held that the CVC is not needed if the addition of permanent disability “provides an accurate rating” when considering the disability effects of multiple injuries. Taina is distinguishable from Lotspike because of the medical-legal reporting of the AMEs.

Louis Larres

In Taina, the reporting from both the orthopedic AME and the psychiatric AME found the respective impairments did not overlap, were supported by medical evidence, and that adding rather than combining was a more appropriate method to obtain a complete picture of the applicant’s permanent disability.

Similarly, in Sweetman v. Bank of America (2014 Cal. Wrk. Comp. PD LEXIS 510), the workers' compensation judge allowed for addition of back and wrist permanent disability, while utilizing the CVC for inclusion of the sleep disability. This rationale was affirmed by the WCAB.

In order to defend against attempts to use the addition method, a defendant needs to ensure the medical evidence does not support a straight addition method. One such way, illustrated in Johnson v. Wayman Ranches (2016 Cal. Wrk. Comp. PD LEXIS 235), is to show the lack of synergy between the two injuries that the applicant would have added together. Johnson’s medical reporting found no overlap or interplay between the psychiatric and orthopedic injuries, which made addition of impairments inappropriate on those facts.

John Kamin

The takeaway, and our focus in defending these claims, is to emphasize the overlap of the various disabilities when developing the medical record. This can take the form of asking the med-legal evaluator to comment on how the injury affects activities of daily living. If there is overlap in the impact of the disability on activities in daily living, then that overlap is what the CVC is designed to address. In that scenario, addition should not be used.

The Court of Appeal, in Department of Corrections and Rehabilitation vs WCAB (Fitzpatrick), while not a case directly on point, did focus on the need for a justification to deviate from the AMA Guides (which includes the CVC) when assessing impairment.

The Court in Fitzpatrick emphasized the need for specific findings based on substantial evidence, from a medical perspective, before allowing a departure from the rating procedures outlined in the schedule. Applying this reasoning to the question of addition versus combining, the addition of impairments must have substantial evidence (i.e., an explanation of how and why addition is more accurate than combining).

There must be something more than a doctor saying there is a synergistic effect. And that is how you prevent your case flying away like a wild Kite.

This article was written by Zane Uribarri, Jemma Uribarri, Louis Larres and John Kamin, workers’ compensation defense attorneys at the Law Offices of Bradford & Barthel. This entry from Bradford & Barthel's blog appears with permission.