California: Combined Values Chart – Guide or Mandate?

The Combined Values Chart (CVC) is included in the 2005 Permanent Disability Rating Schedule (PDRS) as the tool for parties to use to add impairments. The form of mathematics is a bit odd. Under the CVC, 30 + 20 = 44. And 80 + 30 = 86. Some have wondered if this was part of the new “core curriculum” that’s all the rage in schools right now. Not exactly.

The drafters of the 2005 PDRS felt that this complicated reduction formula was the most accurate method for rating an injured worker’s impairment. The formula is intended to take into account the effect of “overlap” among injuries to multiple body parts from a single industrial injury. Use of the CVC also insures that the final permanent disability (PD) rating never “pyramids” beyond 100%. The question then becomes; is use of the CVC mandatory?

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I. PDRS is Rebuttable – So Is the CVC Rebuttable?

The 6th DCA in Milpitas Unified School District v. WCAB (Guzman) (2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837 affirmed the WCAB’s decision, which permitted rebuttal of the 2005 PDRS. However, the court noted that the PDRS is considered “prime facie evidence” of the accurate level of PD. As such, it constitutes a rebuttable presumption of correctness. Since the CVC is part of the PDRS, it would seem that it, too, would be deemed rebuttable under certain circumstances.

The idea of rebutting the Combined Values Chart or its predecessor, the Multiple Disabilities Table (MDT) is not a new one. In the case of Mihesuah v. WCAB and Union Oil Company (1976) 55 Cal. App. 3d 720, 41 Cal. Comp. Cases 81, the 1st DCA rejected the mandatory use of the MDT. The court supported their decision by looking at the instructions for the relevant PDRS which explained that the MDT “formula itself is only a ‘guide’ …‘[the] final rating will be the result of consideration of the entire picture of disability and possibility of employability.’”

In Mihesuah, supra, the injured worker, a mechanic for Union Oil Company, sustained an industrial injury to his left lower extremity and chest on April 29, 1969. His knee impairment rated at 69%, while the injury to his chest rated at 56%. If the MDT had been used to combine the two ratings, the final permanent disability (PD) would have been 92%. The judge ignored the MDT in that case and instead held that the most accurate rating for this injured worker was the category of “sedentary work” which, after adjustment, rated at 77%. This finding was affirmed by both the WCAB and the DCA. (See also Hegglin v. WCAB (1971) 4 Cal.3d 162, 36 Cal. Comp. Cases 93 and Haden v. Sutter Health (2010) 2010 Cal. Wrk. Comp. P.D. LEXIS 104.)

II. Cases Holding CVC Rebuttable

More recently, judges abandoned the CVC, in order to increase the injured worker’s rating, as opposed to decreasing it.

In the case of EBMUD; Athens Administrators v. Kite (2013) 78 Cal. Comp. Cases 213 (writ denied), Richard Kite was a forklift driver who industrially injured both of his hips and underwent surgery to have both hips replaced. The panel QME rated the injury to each of Mr. Kite’s hips at 20% whole person impairment (WPI.) The QME provided an extensive, consistent and legally coherent explanation as to why there was a “synergistic effect of one hip injury upon the other opposite hip injury.” The QME provided more than adequate reasoning as to how the CVC “reduction” method would not accurately reflect Mr. Kite’s disability. Whereas, “simple addition of applicant’s left and right hip impairments provided a more accurate depiction of his overall impairment.”

The Judge agreed with the QME’s analysis and stated, “It appears logical that a person who is able to compensate through the opposite member for an injury to one limb is to some extent less disabled or impaired than someone who cannot so compensate.”

The WCAB affirmed the judge’s decision and the 1st DCA denied writ. (See also Coca Cola v. WCAB (Jaramillo) 77 Cal. Comp. Cases 445 (writ denied).)

III. Cases Holding CVC Must Be Utilized

In the Noteworthy Panel Decision of Borela v. State of California, DMV, 2014 Cal. Wrk. Comp. P.D. LEXIS 217, the WCAB overturned the Judge’s rating which did not include utilization of the CVC.

Sheriee Borela was giving a driving test to an individual applying for a DMV license when she was severely injured in a car accident. After the trial, the judge reviewed the ratings set forth by the orthopedic AME and the psychiatric AME and “instructed the rater that ‘the orthopedic and psychiatric ratings are to be combined in an additive fashion, as there is no overlap…’”

In reversing the Judge, the WCAB distinguished the facts in Kite, supra, which allowed for rebuttal of use of the CVC. In the Kite case, the medical expert, the QME provided an extensive “how and why” explanation to support his conclusion that the CVC was not appropriate. If the medical evidence is lacking this explanation, it can’t be considered substantial evidence.

On the other hand, in the Borela case, the WCAB stated, “Dr. Steiner indicated that applicant's ‘condition is neither complex nor extraordinary’ and does not recommend the combination of the separate disabilities in the manner applied by the WCJ.”

The WCAB also referred to its en banc decision, Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613 (Appeals Board en banc decision), which set forth the quintessential “quick start user’s guide” for each participant in the rating process. The court stated, “Under Blackledge, the WCJ's role in the context of a formal rating is to frame instructions, based on substantial medical evidence, that specifically and fully describe whole person impairments to be rated. The WCJ appropriated the role of the medical expert when she made a medical determination as to how to combine the separate impairments in the absence of specific medical evidence to substantiate her choice.”

The distinction is clear. A judge must have substantial medical evidence in order to ignore the CVC and simply add the ratings together. (See also, the noteworthy panel decision of Lotspike v. J Jill, Travelers, 2013 Cal. Wrk. Comp. P.D. LEXIS 564.)

IV. Conclusion

According to recent panel decisions, it appears as if the WCAB will allow rebuttal of application of the CVC, in much the same way as it might allow rebuttal of any other aspect of the PDRS. However, it is not an issue that is completely within the discretion of the judge. In order to sustain their burden of proof on this issue, the party with the affirmative burden on this issue must produce substantial medical evidence in support of their position. (See Lab. Code § 5705.)

Prudent practitioners should review the various permanent disability ratings prior to the Mandatory Settlement Conference (MSC), along with the medical evidence. If rebuttal of the CVC appears to be a viable option, parties should make sure the record is developed with substantial medical evidence on this issue, prior to filing a Declaration of Readiness to Proceed. The issue should be listed on the MSC document to give all parties proper notice and an opportunity to be heard on the issue.

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