California: CVC or “Addition Method” in SIBTF Cases?

Recently, there has been a significant uptick in the number of Subsequent Injury Benefit Trust Fund (SIBTF) cases being litigated before the WCAB. With these cases come some unique tweaks to existing case law. One of the more interesting issues that has arisen lately has been whether a party may use the simple “addition method” to combine impairments or whether a party is required to combine impairments using the Combined Values Chart (CVC) found in the 2005 Permanent Disability Rating Schedule.

I. Rebuttal of CVC allowed in Evanoff dealing with SIBTF Benefits

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A case in point, is the Noteworthy Panel Decision (NPD) of Evanoff v. City of Los Angeles, 2016 Cal. Wrk. Comp. P.D. LEXIS 201. In that case, the Judge used the CVC to combine applicant’s disabilities. Specifically, applicant, a firefighter, had a prior cumulative trauma (CT) injury ending on 5/1/2007 for which he was awarded 96% permanent disability (PD). Applicant then sustained a second CT ending on 10/7/2012 which resulted in an award of 12% PD.

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The first CT ending on 5/1/2007 dealt with the body parts of heart, back, neck, left knee, right knee, hearing loss and hiatal and inguinal hernias. The second CT ending on 10/7/2012 dealt with body parts and diseases involving prostate cancer, incontinence and sexual dysfunction. Applicant argued that since there were no overlapping body parts between the first and second CT, the Judge should have used the simple “addition method” to combine the two awards, rather than the CVC.

The WCAB agreed and concluded:

“As we are persuaded that in the absence of overlapping disabilities between the two injuries, the disabilities should be added rather than combined using the CVC, and we will return this matter to the trial level for a new award based upon his disabilities of 100% permanent disability.”

II. Qualifying for SIBTF benefits in Evanoff

The first hurdle, applicant had to overcome in the Evanoff case was to meet the threshhold for SIBTF benefits set forth in Labor Code Section 4751:

“If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article; provided, that either (a) the previous disability or impairment affected a hand, an arm, a foot, a leg, or an eye, and the permanent disability resulting from the subsequent injury affects the opposite and corresponding member, and such later permanent disability, when considered alone and without regard to, or adjust for, the occupation or age of the employee, is equal to 5 percent or more of total, or (b) the permanent disability resulting from the subsequent injury, when considered alone and without regard to or adjustment for the occupation or the age of the employee, is equal to 35 percent or more of total.”

III. Determining Substantial Evidence for Rebuttal of Use of the CVC

The WCAB noted that Labor Code Section 4751 “does not specify the method for determining the extent of permanent disability “caused by the combination of both disabilities,” and that the WCJ concluded that the use of the word "combination" requires utilizing the CVC absent a "clear and substantial medical evidence for not doing so.”

However, instead of adopting defendant’s argument, the WCAB referred to the case of Bookout v. Workers’ Comp. Appeals Bd. (1976) 62 Cal. App. 3d 214, 41 Cal Comp Cases 595 for guidance. In Bookout, the WCAB added the “non-overlapping disabilities” for a combined 77% PD. This “addition method” entitled Mr. Bookout to Subsequent Injury Fund (SIF) benefits. The WCAB held that the same “addition method” should be used in the Evanoff case and returned the matter to the trial level for a decision consistent with their opinion, that, in fact, Mr. Evanoff was entitled to a combined PD rating of 100%.

Practice Tip: The WCAB, in this SIBTF case at least, seems to indicate that the “addition method” may be the preferred method to use over the “CVC” in certain cases with “non-overlapping disabilities.” However, it should be noted that in order to make this argument, applicant must have substantial medical evidence to support this position.

IV. Kite’s “synergistic effect analysis” to support rebuttal of CVC method

For a primer on what constitutes substantial medical evidence to utilize the “addition method” over the CVC, parties should familiarize themselves with the case of EBMUD; Athens Administrators v. Kite (2013) 78 Cal Comp Cases 213 (writ denied). The Kite case dealt with 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.)

Generally, use of the CVC method to combine disabilities is the preferred method, because it is presumed correct since it is a part of the 2005 PDRS. Nevertheless, this presumption of correction is rebuttable. The Workers Compensation Judge (WCJ) in the Kite case entertained the possibility of rebuttal and use of the CVC in favor of the “addition method,” since the medical evidence supported Kite’s “synergistic effect analysis.” Essentially, the medical evidence supporting this “synergistic effect analysis” was explained by the Judge in Kite as follows:

“Dr. Cheng points to the synergistic effect of one hip injury upon another opposite hip injury. I agree. 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.” (Emphasis added.)

The WCJ continued:

“I remain persuaded that the QME has appropriately determined that the impairment resulting from applicant’s left and right hip injuries is most accurately combined using simple addition than by use of the combined-values formula.” (Emphasis added.)

In other words, if only one of Mr. Kite’s hips were injured, he would be able to compensate with his remaining uninjured hip. But in this case, both hips were injured. Therefore the “synergistic effect” of both hips being injured increases the impairment and, therefore, the addition method would be the more accurate combination method to use, rather than the CVC.

Again, the key to a successful argument for using the “addition method” over the CVC is the presence of “substantial medical evidence.” The WCAB in the Kite case, was persuaded by the QME’s analysis that the “addition method” would more accurately reflect the applicant’s level of disability than use of the CVC would, based on the “synergistic effect” between the two injured body parts. Therefore, in order to rebut the use of the CVC, the evaluating physician must establish a type of analysis similar to the Kite case’s “synergistic effect analysis.”

V. WCAB Panel Differs on What Qualifies for Rebuttal

The question then becomes how elaborate must the evaluating physician’s discussion be, and how closely must it resemble Kite’s “synergistic effect analysis,” in order to constitute substantial medical evidence on the issue. In a recent Noteworthy Panel Decision (NPD), Diaz v. State of California, 2015 Cal. Wrk. Comp. P.D. LEXIS 683, the panel of commissioners had differing opinions on that issue.

The majority of the WCAB panel went along with the WCJ’s determination that the “addition method” (rather than the presumptively correct CVC method) should be used to add the gastro-esophageal reflux disease (GERD) disability and the irritable bowel syndrome (IBS) disability. The WCJ based his decision on the report and deposition of Dr. Hyman, the AME in internal medicine.

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The WCAB wrote:

“The WCJ felt he could use the additive method for the upper and lower digestive tract because Dr. Hyman's opinions about them comported with the standard set out in the Kite case and his opinions were substantial medical evidence.”

Commissioner Zalewski dissented on this issue and believed Dr. Hyman did not actually endorse the use of the “addition method,” but in fact Dr. Hyman thought this was a legal, rather than a medical issue. Dr. Hyman actually left the final determination of which method was more accurate up to the trier of fact. For support on her conclusion, Commissioner Zalewski cited Dr. Hyman’s deposition testimony as follows:

“In his December 30, 2014 deposition, Dr. Hyman was directly asked if the CVC table or additive method should be used to determine the permanent disability caused by applicant’s IBS and GERD. As shown by the deposition transcript, he responded as follows:

‘I have been deposed on this before. Clearly, the hypertension is a separate issue than any of the others. So it should be considered additive. The GI issues are separate from the orthopedic and the psychological although there are some overlap. And I tend to think that, when you have a body part involved, that those should be combined.

So I would think you would combine the disability for the upper and lower GI, but I would leave that one. It’s such a close call I would leave that one up to the trier of fact whether they think they really are. It’s not like they have gastritis and GERD, which I think would definitely overlap if you are talking about upper and lower.

And if you say that hypertension and heart disease are two different entities, I think you can make the argument that upper and lower gastrointestinal problems should be additive, but I’ll leave that up to the trier of fact. In general, I tend to use the combined values table for the same body system, but I definitely think that the hypertension and the gastrointestinal and the orthopedic and the psych are separate from one another.’ (Joint Exhibit Y4, 28:5–25, emphasis added.)”

Commissioner Zalewski did not find this explanation of the “synergistic effect analysis” between the two pertinent body parts, GERD & IBD, to comport with the “synergistic effect analysis” expressed in the Kite case. And although she agreed that a proper Kite “synergistic effect analysis” might well be able to rebut the presumption of using the CVC and allow for the “addition method,” she did not believe the applicant had met that burden in this case.

VI. Conclusion:

Just as the 2005 PDRS is presumed correct, but can be rebutted with the appropriate evidence, the CVC (a component of the 2005 PDRS) is also presumed correct, but can be rebutted and the “addition method” may be used with the appropriate medical evidence. Although there was language by the medical evaluator in the Diaz NPD suggesting that this is a legal issue for the trier of fact, the law is clear that there must be a medical determination, such as that made in the Kite case for a rebuttal argument to succeed.

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