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WCAB Issues En Banc Decision Providing New Guidelines on Combination of Impairments Via Kite

June 25, 2024

The WCAB has issued a rare en banc decision providing guidance on the applicant’s burden of proof in rebutting the use of the “Combined Values Chart” (CVC) when combining impairments pursuant to the Kite decision. The WCAB found that the use of the phrase “synergistic effect” frequently used by QMEs when invoking the Kite decisions to justify addition of the impairments was insufficient to justify rebutting the use of the CVC without further analysis of whether the applicant’s impairments had overlapping or enhancing effects on the applicant’s activities of daily living (ADLs).

As we know, pursuant to Labor Code section 4660(c) and 4660.1(d), the Schedule for Rating Permanent Disabilities (PDRS) is prima facie evidence of an injured worker’s level of permanent disability.  In determining a final permanent disability rating, the ‘nature of the physical injury or disfigurement’ …shall incorporate the … physical impairments and corresponding percentages of impairments set forth in the AMA Guides, 5th Edition.  (Lab. Code section 4660(b)(1).)  Under the AMA Guides, impairment is based on the impact a disability has on a person’s ADLs.  When rating two or more body parts under the PDRS, the final permanent disability ratings for the affected body parts are combined on the CVC.  The method of combining disability under the CVC usually has the effect of compressing the overall resulting disability.  The CVC is designed this way to account for the expected overlap that two or more disabilities may have on a person’s ADLs.

As we have seen over the years, while the PDRS is evidence of in injured worker’s disability, the courts have found that various components of the PDRS are rebuttable. In 2013, a Board Panel, in Athens Administrators v. WCAB (Kite) (2013) 78 Cal.Comp.Cases 213 (writ denied), found that two different impairment ratings could be added together rather than combined on the CVC where there is substantial medical evidence that the two impairments had a “synergistic effect.” Board Panel decisions may be persuasive but are not binding precedent on Workers’ Compensation Judges or the Appeals Board; thus, the Kite decision was never binding precedent.  However, since the Kite decision came down, it has been used by applicant’s attorneys and Qualified Medical Evaluators (QME) to endorse the addition of impairment ratings in lieu of combining the ratings on the CVC. The primary defense to an attempt to rebut the CVC was to demonstrate “overlap” between the impairments, while the lack of overlap between impairments could be further evidence of the need to add them rather than combine on the CVC. The context of the impairments in Kite involved bilateral body parts, and the court in Kite reasoned that where two opposing body parts are impaired, the resulting impairment could be even greater than anticipated by the PDRS.

In an En Banc decision on June 10, 2024, in Vigil v. County of Kern, the Appeals Board held that the Combined Values Chart in the PDRS can be rebutted and the impairments may be added, as the Panel previously held in Kite; However, contrary to the guidance in Kite requiring a “synergistic effect,” the WCAB indicated the use of that term is not a “magic word” invoking addition of impairments, and instead laid out a new test for rebutting the CVC. Going forward, in order to rebut the CVC the injured worker must satisfy either element of a two part test.

First, if the injured worker proves the effects on ADLs caused by each body part rated do not overlap, they have successfully rebutted the use of the CVC and it need not be followed. Second, where the impairments do overlap, the injured worker must prove that the overlap “increases or amplifies” the impact on the overlapping ADLs. Furthermore, the WCAB emphasized that the physician “must set forth a reasoned analysis explaining how and why synergistic ADL overlap exists.”  Where there is no overlap in the effects on ADLs, the PDRS is rebutted and the impairment can be added versus combined on the CVC.  When the effect on ADLs do overlap, there must be substantial medical evidence of the “synergistic effect” of the multiple impairments on the applicant, meaning the physician must do more than simply state that there is synergy, and must provide an explanation focusing on the effects of the impairment on ADLs.

In Vigil, the QME stated that the applicant, post bilateral hip surgeries, had pain in both hips that was aggravated by prolonged walking and lifting and carrying greater than 40 pounds, and the QME agreed that someone with limitations due to both hips is going to have significantly more limitations than someone with one normal hip and one post-surgical hip.  The Board found that the QME’s opinions did not address the impacts on applicant’s ADLs, and that the QME’s opinions provided little analysis and support of his conclusion that the impairment should be added. The trial decision was rescinded and the case was returned to the trial level for further development of the record.

While this En Banc decision confirms the method of adding impairment pursuant to Kite is permissible in certain situations, the WCAB has seemingly provided a more clear roadmap for the parties to utilize when addressing the question of using the CVC versus simple addition for combining multiple impairments..  On the one hand, it is no longer enough for a QME to merely state the impairment should be added versus combined or that a “synergistic effect” exists; they must specifically explain the “how and the why” using analysis of the effects on ADLs. Applicants now have the burden to prove by substantial medical evidence what ADLs are impacted by each impairment and that either the impacted ADLs do not overlap, or if they do overlap how and why that overlap increases or amplifies the net impact.  This decision creates clear guidelines for what is required for such decisions to be deemed substantial medical evidence, and it is binding precedent that must be followed by all judges and the Appeals Board.

Written By:

Vicki N. Lindquist, Esq., Partner, of our LFLM-Oakland/Concord Office

Laughlin, Falbo, Levy & Moresi, LLP.