By Robert G. Rassp, author of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis) Disclaimer: The material and any opinions contained in this treatise are...
Oakland, CA – Private self-insured claim volume in the California workers' compensation system fell 9.5% in 2023, producing the biggest year-to-year decline in private self-insured claim frequency...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board No matter the source of your media consumption, it seems that the topic...
By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board Who doesn’t agree with the fact that “[w]e should not interpret or apply statutory language...
When do the exclusivity provisions of Labor Code section 3600 permit an action for law at damages? By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’...
By Robert G. Rassp, author of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis)
Disclaimer: The material and any opinions contained in this treatise are solely those of the author and are not the opinions of the Department of Industrial Relations, Division of Workers' Compensation, or the WCAB, or any other entity or individual. The materials are intended to be a reference tool only and are not meant to be relied upon as legal advice.
Case law has supported a number of ways a strict WPI rating can be rebutted by competent medical evidence. Counsel is familiar with the medical-legal contention that a more accurate rating can be found within the four corners of the AMA Guides 5th Edition pursuant to the six steps described in Milpitas USD v. WCAB (Guzman III) (2010) 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112, 75 Cal. Comp. Cases 837 [See The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation (LexisNexis) (hereinafter “Guidebook”), Ch. 7, 7-41 through 7-49]:
Since 2013, another method to rebut a rating under the 2005 and 2013 Permanent Disability Rating Schedule is by challenging the application of the Combined Values Chart (CVC). In Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ denied), the concept that application of the CVC can be rebutted if there are additive effects of two separate WPI ratings that significantly affect an injured worker’s activities of daily living (ADLs), using the example that bilateral hip replacements have a “synergistic” effect on the injured worker’s ADLs. In Kite, the medical-legal physician justified adding the impairments for the two hip replacements by indicating that having bilateral artificial hip joints takes an adverse effect on a person since they basically must relearn how to walk, balance themselves, use stairs, and generally use their lower extremities that are being supported by implanted devices.
The Kite case was originally an Appeals Board Noteworthy Panel decision and became a writ denied case as indicated above. Kite has been cited over the years, with the evolution that a “synergistic” effect is not the only route to adding separate WPI ratings instead of using the CVC. Trial judges and the WCAB have cited Kite numerous times since 2013, with the “current” version of the case requiring only that a medical-legal evaluator or primary treating physician indicate that adding WPI ratings instead of applying the CVC is more accurate in terms of how the industrial injury has affected the injured worker’s ADLs.
On June 10, 2024, the Appeals Board issued an en banc decision in Virgil (Sammy) v. County of Kern (2024) 89 Cal. Comp. Cases __ (2024 Cal. Wrk. Comp. LEXIS 23) that embodied the concept of adding WPI ratings in appropriate cases by rebutting the use of the Combined Values Chart. The Appeals Board decision provides counsel with the analysis necessary to rebut use of the CVC and to add WPI ratings. The emphasis is to obtain competent, persuasive, credible, and reliable medical evidence from a physician who explains why impairments should be added and not combined.
In Virgil, the injured worker was employed as a maintenance painter for the County of Kern and sustained injuries to his hips and back on December 7, 2017, and alleged cumulative trauma through February 7, 2020. Mr. Virgil had bilateral hip replacement surgeries. A trial judge calculated permanent disability by adding the impairments to the hips and combining it with the impairment to the lumbar spine. The judge did not apply 15% apportionment to non-industrial factors to the hips based on Hikida because the judge opined the disability was caused by the surgical hip replacement as an iatrogenic cause of the permanent disability. The issue on reconsideration was whether the calculation of permanent disability included the proper application of Kite as to the hips and whether the judge’s determination of no apportionment was supported by the record.
The Appeals Board remanded the case back to the trial level to develop the record in order to determine whether there is substantial medical evidence to support both application of Kite and whether there is or is no legal valid apportionment. Both issues have to be determined by Dr. Newton who was the QME in orthopedic surgery. The Appeals Board provided a framework of the medical-legal analysis it requires in order to rebut the application of the combined values chart and add the impairments instead.
The Appeals Board en banc decision requires physicians to analyze in detail the effect on the injured worker’s activities of daily living (ADLs) as to each part of body injured and compare them to each other to see whether there is an additive or synergistic effect of two or more parts of body injured that result in permanent impairment. Counsel is reminded that each ADL must be addressed by the evaluating physician (either a primary treating physician or medical-legal physician). Table 1-2 on page 4 of the AMA Guides lists the ADLs that need to be evaluated:
Physicians should utilize this chart and evaluate the effect of each injured part of body on the injured worker’s ADLs. The key to the Virgil case is for the physician to determine:
(1) If there is no overlap between impairments for separate parts of body injured and how each affect the injured worker’s ADLs the impairments can be added and the CVC is rebutted; or
(2) If there is overlap and the physician has to determine whether or not injury to two or more parts of body or body systems cause a synergistic effect on the overall ADL functioning of the injured worker (like it did in Kite with bilateral hip replacements). So, if two or more separate impairments overlap but cause a greater than expected effect on overall ADL functioning, the CVC is rebutted; or
(3) If the effects on ADLs overlap and the CVC applies and provides the most accurate rating.
In Virgil, Dr. Peter Newton was the QME in the case who issued four reports and had his deposition taken by the parties. Dr. Newton is a very well-respected AME-quality orthopedic surgeon and it is clear to this author that the Appeals Board was looking for a case with a credible AME quality physician where the injured worker’s attorney was intending to rebut the use of the Combined Values Chart under Kite. The Virgil case establishes the medical-legal analysis for the injured worker to rebut the CVC by using the criteria set forth by the Appeals Board. This was a perfect case for the Appeals Board to choose as a template for that rebuttal process much like the rebuttal of the WPI strict ratings were set forth in Guzman III, referenced above.
At MMI, Dr. Newton provided the following factors of subjective complaints as to the hips and low back:
The applicant experiences pain in the low back, which is present all the time, [greater] in the mornings and evenings. The pain is increased with prolonged walking, bending, kneeling, stooping, forward bending, ascending and descending stairs and curbs, lilting and carrying greater than 40 pounds. There is no radiating pain, numbness or tingling.
RIGHT HIP:
There is currently no pain in the right hip however, he has intermittent pain that is aggravated by prolonged walking and lifting and carrying greater than 40 pounds.
LEFT HIP:
The applicant experiences pain in the left hip, which is present all the time for the last month. The pain is aggravated by prolonged walking and lifting and carrying greater than 40 pounds.
Dr. Newton concluded that both hip replacements resulted in a “good result” and assigned pursuant to Tables 17-34 and 17-33, 15% WPI for the right hip, 15% WPI for the left hip, and 7% WPI for the lumbar spine (utilizing the DRE method). As to the issue of apportionment of permanent disability, Dr. Newton opined as follows:
To a reasonable degree of medical probability, 15% of this applicant's lumbar spine and right and left hip condition/disability/impairment is apportioned to age-appropriate and age-related degenerative changes and 85% to the continuous trauma of his work through 03/26/18.
In Dr. Newton’s deposition testimony, the following questions and answers were indicated as to the application of Kite:
Q. Okay. And are you familiar with the Kite case, K-i-t-e
A. Yes.
Q. And would you feel a Kite analysis would be proper in this case?
A. I assume you're asking me for the hips, right?
Q. Yes.
A. Yes, for the hips, I agree. Somebody with limitations due to both hips is going to have significantly more limitations than if somebody had one normal hip and one hip that they had surgery on.
Q. So in this case would you add disability for the hips rather than just combine them?
A. Yes. I think that's reasonable.
In their discussion in Virgil, the Appeals Board starts with referring to the Combined Values Chart as originating from the 2005 Permanent Disability Rating Schedule and which was part of the mandate of Labor Code Sections 4660 and 4660.1 to incorporate the descriptions and measurements of the AMA Guides 5th Edition in the determination of permanent disability. The Appeals Board then provides the mathematical formula that constitutes the basis of the CVC and lists the ADLs from Table 1-2 on page 4 of the Guides. What the Appeals Board did not do in the Virgil decision is to refer to the extensive discussion by the AMA Guides authors and editors in Chapter 1, pages 9-11 that the CVC is not scientifically based and that the only purpose of it is to prevent any one body part or body system from having a greater than 100% WPI impairment rating. See the detailed discussion of the CVC referenced in this Guidebook in chapter 1. In fact, the concept of “overlap” or overlapping impairments and the effects of each on ADLs is barely given lip service by the authors of the Guides.
So the emphasis by the Appeals Board decision in Virgil is to legally permit the rebuttal of the CVC by an analysis of how each impairment affects the injured worker’s ADLs and to see whether there are any overlapping ADL deficits by each injured body part with a WPI rating. The question is: who does this analysis? The Appeals Board clearly mandates that this is a medical-legal determination and is not a question of fact to be determined by a trier of fact without medical evidence.
The Appeals Board gives the reader the following example of when there is and is not overlap and the actual numerical differences between the two:
As an element of the PDRS, the CVC may also be rebutted, and when the CVC is rebutted, those impairments may simply be added. For example, under the CVC, a 13% disability to the lumbar spine combines with 20% psychiatric disability to equal 30% [20 + 13(1-0.2)]. In this example, when 20% + 13% are added, the sum is equal to 33% permanent disability. [emphasis by the Appeals Board].
Counsel can see how much simpler WPI ratings can be compressed by use of the CVC. For another example, a 30% WPI combined with a 30% psychiatric WPI would equal 51% WPI. A 50% WPI combined with a 50% WPI would equal 75%. The Appeals Board is mindful of the compressive effect the CVC has when more than one body part is injured in a work-related injury. The Combined Values Chart has much greater compression of numbers than the previous Multiple Disabilities Table (MDT).
The Appeals Board en banc concluded in Virgil how the Combined Values Chart can be rebutted:
The Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either:
(a) there is no overlap between the effects on ADLs as between the body parts rated; or
(b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs.
There are essentially two ways multiple impairments can be added rather than combined:
1. When there is no overlap between impairments upon the effects of the ADLs [citing Devereux v. State Compensation Insurance Fund, 2018 Cal. Wrk. Comp. P.D. LEXIS 592 (Board panel decision)]. The Appeals Board states: “Where the medical evidence demonstrates that there is effectively an absence of overlap, the CVC table is rebutted, and it need not be used.”
One example of no overlap may involve an injury to the lumbar spine and right shoulder where the lumbar spine rating results in a DRE Category 3 10% WPI and the shoulder results in an overall WPI rating of 20% (based on loss of motion and loss of strength and a distal clavicle resection arthroplasty). The lumbar spine impairment is based on the criteria set forth in Table 15-3, which does not mention ADLs at all. ADL review of Table 1-2 for the lumbar spine could include self-care such as urinating, defecating (due to nerve root irritations), standing, sitting, reclining, walking, climbing stairs, riding, driving and flying, sexual function, and sleep. ADL review of Table 1-2 for the right shoulder may include brushing teeth, dressing oneself, writing, typing, grasping, lifting (may overlap with spine), sleep (may overlap with spine).
The physician evaluates each body part using Table 1-2 to identify the effects on ADL functioning and see to what extent, if any, there is overlapping factors for two or more parts of body injured.
2. There are overlapping ADLs with a synergistic effect (which is what occurred in the bilateral hip replacements in Kite). The Appeals Board states: “In Kite, the CVC was rebutted by substantial medical evidence showing the synergistic effect of the two impairments on applicant.”
The Appeals Board defined the term “synergy” and how that term applies in the context of evaluating two or more impairments arise out of an industrial injury:
‘Synergy’ is “(1) the interaction of two or more agents or forces so that their combined effect is greater than the sum of their individual effects; or (2) Cooperative interaction among groups. … that creates an enhanced combined effect.” (American Heritage Dict. (Fifth Edition, 2022).) In some cases, two impairments overlap with one another in their effect on ADLs to the extent that they amplify one another to cause further impairment than what is anticipated in the AMA Guides. Thus, it is permissible to add impairments where a synergistic amplification of ADLs is shown.
The Appeals Board in Virgil gives as an example of synergistic effect of a person who suffers one hand injury compared to someone else who has two hand injuries to separate hands:
For example, if applicant had an impairment in the dominant hand, an evaluator might find that the impairment impacts the ADL of non-specialized hand activities, such as being able to button a shirt. If applicant's impairment was to both hands, one might expect the ability to button a shirt to be even more difficult. The purpose of the CVC, avoiding duplication, does not apply in such cases as the impairments are not duplicative, because the two impairments together are worse than having a single impairment.
This example is exactly taken from the Kite case where the injured worker also had bilateral hip replacements as what occurred in the Virgil case. The physician in Kite explained in detail why bilateral hip replacements have a synergistic effect on the injured worker’s ADLs—especially with walking, standing, and climbing stairs. Another example where there may be a synergistic effect of two injured body parts is with any kind of contralateral injuries—such as the right shoulder and left knee. A person with a severe osteoarthritic left knee may want to use a cane for ambulation, but they would use their right upper extremity to support their weight to compensate for the bad left knee, which could negatively affect walking, standing, and stair climbing in a greater than expected level of severity.
The determination of any possible overlap and rebutting the use of the CVC is relatively easy for an evaluating orthopedic surgeon or chiropractor. The difficulty in the analysis of whether the CVC is rebutted will occur in injuries that result in multiple body systems injuries—typically involving orthopedic, internal medicine, and psyche. Who decides that impairments from multiple medical specialties should be added together and not be subject to the CVC? Based on the discussion by the Appeals Board in Virgil this determination cannot be made unilaterally by a trial judge or the by Appeals Board—it requires substantial medical evidence that separate impairments from different specialties should be added and not combined. The medical record will need to be developed by the parties by interrogatory by an advocacy letter, deposition testimony, or supplemental reporting by each medical specialist who reviews each other’s MMI reports.
In Virgil, the Appeals Board remanded the case back to the trial level with instructions to develop the record in that Dr. Newton needs to address the effects on the injured worker’s ADL functioning for each hip separately and why the disability in the two hips combined in a way to increase the impact on the injured worker’s overall ADLs. Specifically, the Appeals Board states:
Here, Dr. Newton concluded that applicant would have significantly more limitations after having both hips replaced, but he provided little analysis in support of this conclusion. Dr. Newton should have reviewed the impacts upon the ADLs in each individual hip, and then explained why the disability in the two hips combined in a way to increase the impact on overall ADLs. Yet, Dr. Newton's reporting and the present record contain no discussion of ADLs. Accordingly, the finding that the impairments should be added is not based on substantial medical evidence.
The language used by the Appeals Board in the remand order’s conclusion should be adopted by counsel who advocates that impairments for more than one body part or body system should be added due to an “increase in the impact on overall ADLs.” Each physician needs to address each body part under Table 1-2 and explain their rationale for adding the impairments rather than using the CVC. Whether it is a synergistic effect or different ADLs that are affected by two or more parts of body injured, the treating or evaluating medical-legal physician must explain the reasoning behind adding WPI ratings rather than applying the CVC.
Counsel is reminded that the Combined Values Chart applies as a default—part of the strict WPI ratings physicians are required to utilize. Only when the ADLs are significantly affected by more than one part of body or body system that are injured does the issue of rebutting the CVC may arise. The Appeals Board is clear that this is a medical determination that cannot be made by anyone other than a physician. So it is probable that the CVC will still apply in many cases if there is no reasonable basis for a physician to conclude either (1) two or more impairments do not overlap having different effects on ADLs, or (2) two or more impairments have a synergistic effect on the injured worker’s ADL functioning.
© Copyright 2024 LexisNexis. All rights reserved. This article is reprinted from the forthcoming 2025 Edition of The Lawyer’s Guide to the AMA Guides and California Workers’ Compensation, by Robert G. Rassp (LexisNexis).