California: A Successful Flight with Kite Ain’t What it Used to Be

By Hon. Colleen Casey, Former Commissioner, California Workers’ Compensation Appeals Board

It has been over a decade since the 2nd DCA (District Court of Appeal) denied writ in the case of Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ den.). Yet, during that entire ten-year span, not one District Court of Appeal has weighed in on the Kite issue. In fact, Kite was the only “Addition Method v. Combined Values Chart (CVC)” case to reach a DCA, yet even they didn’t offer an opinion on the issue. They merely denied writ.

Does the battle over “Addition v. CVC” hold so little legal significance that no one cares? Not a chance. A review of recent Noteworthy Panel Decisions (NPDs) indicate that the issue is seriously significant for both applicant and defense. So, what is the underlying truth behind no appeals?

A quarter of a century ago, the 2nd DCA did review the case of County of Los Angeles v. W.C.A.B. (LeCornu) (2009) 74 Cal. Comp. Cases 645 (writ den.), where rebuttal of the MDT (Multiple Disabilities Table, a predecessor of the CVC) was found viable. But the law was different back then. The 1997 PDRS was in use, and it specifically stated that its MDT was intended as a guide only. Should we read anything into the fact that when the 2005 PDRS was drafted, all mention of the CVC as a “guide only” was omitted?

The 3rd DCA sure thought so. When the court was presented with this “combining” issue using the 2005 PDRS in the case of Dept. of Corrections v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 83 Cal Comp Cases 1680, they declined to consider the issue as it was raised for the first time on appeal. Nevertheless, the issue triggered enough of a rise from the Justices to add footnote 14 as follows:

“Although we do not consider the Board's new theory, [use of addition method over the CVC,] we would be remiss in failing to comment on the fact that the Board attempted to support its position by relying on the schedule for rating permanent disabilities dated April 1997 (1997 Schedule), relying on language not existent in the 2005 Schedule, and cases predating the 2004 legislative amendments and the 2005 Schedule for the proposition that “[j]udicial decisions agreed that combining factors of disability by addition was appropriate if it provided a more valid measure, and it was expected that the [Board] would take into account the conclusions of the examining physician and would exercise sound discretion in rating permanent disability.” The 2005 Schedule differs substantially from the 1997 Schedule, and appropriately so given the 2004 amendments and the Legislature's directive.”

Still, the reasoning behind the mandatory use of the CVC lacks the elemental goal of the workers’ compensation legislation to arrive at the most accurate measure of the worker’s disability, based on the impact of the injury on the applicant’s Activities of Daily Living (ADLs). The CVC exists to keep the injured worker’s permanent disability (PD) level from exceeding 100%. Therefore, it has nothing to do with “accuracy.” So, when appropriate, the WCAB continues to affirm use of the “Addition Method” overuse of the CVC. So far, aside from the dicta from the 3rd DCA, no one has challenged this practice at the DCA level.

Moving towards “accuracy” seems to be the primary basis for the “synergistic effect” argument accepted by the courts in the case of Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ den.). That is the case that kicked off approval of the “Addition Method” under certain circumstances.

In the Kite case, Richard Kite, a forklift operator, suffered a cumulative trauma injury which required bilateral hip replacement surgery. The WPI (Whole Person Impairment) for one hip replacement would be 20%. Using the CVC, the total WPI for Mr. Kite would be 36%. In essence, the QME explained that a WPI of 36% would not accurately reflect the amplified impact that the bilateral (versus unilateral) hip replacement would have on the worker’s ADLs. He explained why adding the WPI for each body part was a more accurate metric for WPI than the reduction method of CVC because, “there is a synergistic effect of the injury to the same body parts bilaterally versus body parts from different regions.”

In affirming the WCJ analysis in Kite, the WCAB also recognized that even the AMA Guides at page 10 questioned the utility of the CVC over other possible combining methods, as follows:

“A scientific formula has not been established to indicate the best way to combine multiple impairments. Given the diversity of impairments and great variability inherent in combining multiple impairments, it is difficult to establish a formula that accounts for all situations. A combination of some impairments could decrease overall functioning more than suggested by just adding the impairment ratings for the separate impairments (e.g., blindness and inability to use both hands)… Other options are to combine (add, subtract, or multiply) multiple impairments based upon the extent to which they affect an individual’s ability to perform activities of daily living.” (Emphasis added.)

Again, as with ALL measurements in the AMA Guides, it all goes back to determining which combining tool most accurately reflects an injured worker’s level of impairment “based upon the extent to which the injury affects that individual’s ability to perform activities of daily living.”

PRACTICE NOTE: The list of the applicable eight ADLs can be found on page 4 of the AMA Guides, along with a description of what each ADL encompasses for PD rating purposes. Since this metric forms the basis for almost all PD ratings, each medical evaluator should make sure to include a verified ADL questionnaire in the medical-legal report. If necessary, a Functional Capacity Evaluation (FCE) may be warranted at the physician’s discretion. For the above reasons, failure to consider the impact of applicant’s injury on their ADLs, could be fatal to any physician’s ultimate PD determination, as well as to the CVC rebuttal analysis.

The amorphous “synergistic effect” term as expressed in Kite, is still in use by physicians in support of the “Addition Method.” However, given the term basically means “the whole is greater than the sum of its parts,” the wording has morphed a bit. It seems to have taken a back seat to the more inclusive concepts of “overlap” or a second “lack of overlap” analysis. The result is that the medical evaluator must clearly explain the rationale behind one of the following conclusions:

(a) The resulting overlap of damage to the multiple injured body parts is so massive that it significantly amplifies and causes further impact on the ADLs than anticipated by the AMA Guides. (This appears almost identical to “synergistic effect.”); OR

(b) There is no overlap of impact of the injured body parts on the ADLs, eliminating the concern for “double dipping.”

After reviewing recent Noteworthy Panel Decisions (NPDs) dealing with the selection of the appropriate combining metric, there seem to be some common denominators as set forth below.

1. Physician Must Provide “How and Why” Analysis

The #1 reason the Addition Method is not accepted by the courts is when the physician fails to provide at least one of the above “how and why” analyses for their conclusion.

The case of Cano v. Ramco Enters., 2022 Cal. Wrk. Comp. P.D. LEXIS 110, dealt with a strawberry picker who industrially injured her spine and left lower extremity. The medical evaluator in that case used the 2nd “no overlap” option described above, to support his position that the “Addition Method” was the most accurate.

At deposition, Dr. Cremata gave a detailed explanation as to how the lumbar spine injury and the left leg injury impacted the applicant’s ADLs in very different ways. He noted that he had considered the issue of overlap, but in this case, absolutely none existed. Therefore “double dipping” was not a concern in this case. The WCAB explained that his opinions were well reasoned and constituted substantial evidence regarding the proper rating of applicant’s disability.

In the Cano case, the majority of the WCAB panel affirmed the use the Addition Method. However, one commissioner dissented, finding that Dr. Cremata did not provide an appropriate “synergistic effect” analysis and explained,

“Dr. Cremata made no mention of the type of synergy required as allowed in the Kite decision. This would have been something to the effect that the injury to her spine and the injury to her lower extremities exceeded the level of impairment that would have resulted if only one of those body regions had been impacted.”

Therefore, without the “synergistic effect” theory to rebut the use of the CVC, the dissent determined that applicant had not met her burden of proof. Applicant prevailed because two of the three commissioners on the panel found the doctor’s “how and why” analysis was compliant with the 2nd currently accepted “no overlap” theory for use of the “Addition Method,” even though Dr. Cremata did not follow the “synergistic effect” analysis of Kite. This case highlights a legitimate debate over the necessary elements for analysis.

2. Legal Arguments for Use of Addition Method Must Be Bullet Proof

It is essential that litigators adequately develop the medical record before trial on this issue to ensure their burden of proof is met for this Milpitas v. W.C.A.B. (Guzman) [(2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837] rebuttal of use of the CVC. For instance, an argument that the WCJ is forgetful will fail, as happened in the NPD case of Ruiz v. First Group America, 2023 Cal. Wrk. Comp. P.D. LEXIS 239. In applicant’s Petition for Reconsideration, the attorney wrote, “WCJ forgot to add disability impairments when not overlapped.” This line can be found verbatim in the Petition for Reconsideration at p. 3, lines 27-28, with absolutely no analysis to back up the claim. The WCAB held the applicant failed to meet her burden of proof on this issue.

3. Adding Body Parts in Different Specialties May No Longer Be a Bar to Rebuttal

In prior NPDs, the WCAB rejected use of the “Addition Method” when different body parts, such as upper extremities injury and a psychiatric impairment, were evaluated by medical evaluators in different specialties. However, the current trend is to affirm rebuttals of the CVC in those cases, when the explanation is based on “substantial medical evidence.”

In the case of Ricalde v. Witbeck, 2022 Cal. Wrk. Comp. P.D. LEXIS 334, four fingers of applicant’s right (dominant) hand were violently amputated, resulting in both an orthopedic and psychiatric impairment. The psychiatric QME prematurely provided a conclusion that use of the CVC was more appropriate than the “Addition Method.” This conclusion was doubly fatal. First, because there was no “how and why” explanation to back it up. Second, it issued before Mr. Ricalde had reached maximum medical improvement, so opinions as to applicant’s level of PD and use of any combining method were premature.

The orthopedic QME, on the other hand, explained in depth how and why “applicant's disability including loss of range of motion, amputation of the fingers, and loss of grip strength are entirely separate from his symptoms, complaints, and functional incapacity for socialization due to his psychiatric disability.” Therefore, no overlap existed and the orthopedic QME’s analysis was deemed “substantial medical evidence” sufficient to rebut the use of the CVC in favor of the “Addition Method” under the facts of this case.

Conclusion

The bottom line is that until a DCA (or a WCAB en banc decision) provides guidance as to a rebuttal template in these cases, it is up to the parties to carefully monitor and upgrade, if necessary, their medical evidence to ensure it meets the “substantial medical evidence” standard on whichever position they are promoting.

It is the applicant’s burden of proof to rebut the use of the CVC. However, defendants should also carefully screen the various WCAB panel decisions concerning this issue, and when necessary, offer critical input as the law develops. When a DCA eventually reviews this issue and attempts to craft coherent guidelines to follow, all parties will benefit. At that point, the court will have the benefit of correct legal analyses and “substantial medical evidence” to review, and will enable them to create well-reasoned precedent that most accurately reflects the levels of applicants’ disabilities.

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