California: Adding Disabilities Rather than Using the CVC

In a noteworthy panel decision, the WCAB in Taina v. County of Santa Clara/Valley Medical Center, 2018 Cal. Wrk. Comp. P.D. LEXIS --, affirmed the WCJ and held that the WCJ did not err by determining the level of permanent disability caused by applicant’s 10/4/2011 neck, shoulder and psychiatric injuries by adding orthopedic and psychiatric disabilities to find 87 percent permanent disability, rather than by combining percentages of permanent disability using the Combined Values Chart (CVC). Here, the agreed medical evaluators determined that the disabilities caused by applicant’s orthopedic and psychiatric injuries did not overlap and that adding those separate values provided an accurate overall permanent disability rating. The WCAB noted that  the disability values of multiple impairments may be added instead of combined, using the CVC if that provides a more accurate rating, particularly if there is no overlap and when the synergistic effect of multiple disabilities supports that method of combination, and that adding disabilities is supported by the AMA Guides, as shown by the discussion of the trier of fact’s role provided in Chapters 1.4 and 1.5 on pages 9 and 10 of AMA Guides.

Commentary: This decision will assist counsel in determining what language and the rationale a physician should use to show a “synergetic” effect of two body system injuries on a person’s overall permanent disability. The psychiatrist very clearly used sleep disorder as a great explanation of why there was no overlap between psyche and ortho components – the sleep disorder was due to pain from the ortho injuries and was not from depression. This case is an excellent reference for everyone to cite since it summarizes all of the recent post-Kite cases and discusses the rationale for adding rather than using the CVC which was meant in the AMA Guides to prevent multiple impairments to equal greater than 100% WPI. That rubric does not apply when assessing how multiple body system medical conditions affect a person’s future earning capacity. CAUTION: WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges.

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