Oakland – A new California Workers’ Compensation Institute (CWCI) study finds that average paid losses on California workers’ compensation lost-time claims fell immediately after legislative...
By Thomas A. Robinson, Co-Editor-in-Chief, Workers’ Compensation Emerging Issues Analysis (LexisNexis)
As we move through the third decade of the twenty-first century, the United States remains...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
Industrially injured workers in California are entitled to receive...
CALIFORNIA COMPENSATION CASES
Vol. 88, No. 9 September 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
It is well-settled law that federally recognized Indian Tribes have...
Rating permanent disability (PD) in the California workers’ compensation system pairs down to a very simple principle: How does the injured worker’s industrial impairment impact the Activities of Daily Living? That is the principal question for use of the AMA Guides. The AMA Guides in § 1.2, at p. 4, Table 1-2 lists the eight Activities of Daily Living (ADLs) as follows:
I. Purpose of the Combined Values Chart (CVC) per the AMA Guides
Once a permanent disability rating is calculated for each body part after an injury, the question then becomes, how are these ratings, based on impact of ADLS, combined? The Combined Values Chart (CVC) found at the end of each rating manual is the presumptively correct method to use pursuant to Lab. C. § 4660(d) and Lab. C. § 4660.1(d). However, the authors of the AMA Guides admit there is no one best way to achieve the most accurate result:
“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.” (See AMA Guides, § 1.4, at p. 10.)
The Guides explain that the purpose of the CVC is basically two-fold:
A. To Ensure the Ultimate PD Value Does Not Exceed 100%
In Chapter one of AMA Guides, § 1.4, at p. 9, it is written:
“The CVC (page 604) was designed to enable the physician to account for the effects of multiple impairments with a summary value. A standard formula was used to ensure that regardless of the number of impairments, the summary value would not exceed 100% of the whole person.”
B. To Avoid Overlap of Impact of Injuries on Applicant's ADLs
On page 10 of the AMA Guides, the authors explain that a second purpose of the CVC is to avoid overlap of the same or similar impact that any two or more injuries may have on the injured worker’s activities of daily living. For instance, if an impairment to the right hip impacts the worker’s ADLs in the same manner as her impairment to the lumbar spine, the combination of these two impairments would result in an overlap of permanent disability (PD). In order to avoid giving an increased value of PD to this “overlap of disability,” the PD of each injured body part should be combined using the CVC reduction method.
II. Combining Methods Other Than the CVC May Be More Accurate
The AMA Guides recognize that different jurisdictions use combining methods, other than the CVC, which may result in a more accurate overall PD rating as follows:
“Many workers’ compensation statutes [from other states] contain provisions that combine impairments to produce a summary rating that is more than additive. 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.” (See AMA Guides, § 1.4, at p. 10.)
III. Use of the CVC Versus Use of the Simple Addition Method
That begs the question. Which is more accurate for rating permanent disability of an injured worker: (1) use of the CVC, or (2) the simple “Addition Method,” which is currently being used in California to rebut the presumptively correct CVC?
As part of the 2005 Permanent Disability Rating Schedule (PDRS), we know that the CVC is presumptively correct. For dates of injury on or after 1/1/2013, Lab. C. § 4660.1(d) provides:
“The Schedule for Rating Permanent Disabilities pursuant to the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) … shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”
Lab. C. § 4660(d) has a similar provision relating to dates of injury before 1/1/2013.
The fact the CVC is the presumptively correct method to use, does not necessarily mean it is the most accurate method to use, and therefore it is subject to rebuttal if it can be established with medical evidence that the “addition method” is more accurate.
IV. Kite’s “Synergistic Effect Analysis” Supports Rebuttal of CVC method
For a primer on what constitutes substantial medical evidence to determine whether to use the “addition method,” parties should familiarize themselves with the case of EBMUD; Athens Administrators v. Kite (2013) 78 Cal. Comp. Cases 213 (writ den.). 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.)
The Workers Compensation Judge (WCJ) in the Kite case entertained the possibility of rebuttal of the CVC in favor of the “addition method,” since the medical evidence supported Kite’s “synergistic effect analysis.”
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 permanently injured at the same time results in a significantly more substantial impairment. Therefore, the addition method would be the more accurate combination method to use, rather than the CVC.
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. The key to a successful rebuttal in this case was the fact that the QME’s medical evidence constituted “substantial medical evidence.”
V. “No Overlap of Impact on ADLs” also Supports Rebuttal of CVC Method
The Kite case illustrates how a rebuttal may be successful using the “synergistic effect” method. However, there is another method that also works to rebut use of the CVC. The simple “addition method” may be used to rebut the CVC when multiple impairments have “no overlap of impact upon the ADLs.”
For instance, looking at the list of ADLs below, if the applicant had both heart and psyche impairments from the same industrial injury, medical evidence may support the contention that the heart injury impacts #1, #3, #7 and #8, while the psych injury may impact #2, #4, #5 and #6.
A similar situation occurred in the Noteworthy Panel Decision (NPD) of Devereux v. State Comp. Ins. Fund, 2018 Cal. Wrk. Comp. P.D. LEXIS 592. In that case, a SCIF attorney had a heart impairment (with a PD of 30%) and a neuropsych impairment (with a PD of 60%.) Both the cardiologist and the psychiatric evaluating physicians noted that the combined injuries did not “synergistically affect” and increase the impact on ADLs. However, the medical evaluators did determine that there was absolutely no overlap of the impact of the two impaired body parts on the applicant’s ADLs. Therefore, they opined that use of the simple addition method, rather than CVC reduction method, would result in the most accurate PD rating for this injured worker.
The WCAB agreed and stated:
“It is the role of the medical expert to make a medical determination as to how to combine the separate impairments. Multiple cases have held that this determination is best based upon the extent to which the impairments affect applicant’s ability to perform ADLs. It is the opinions of the medical evaluators and not a rigid application of the CVC in the rating that should prevail.”
It cannot be emphasized enough that the determining factor in rebutting use of the CVC is use of bullet proof “substantial medical evidence”, whether using either the “synergistic effect” method, or the “no overlap on ADLs” method. All of the determinations in the case law to date seem to rise and fall on this one important element, “substantial medical evidence.”
VI. Importance of “Substantial Medical Evidence”
In the NPD decision of Foxworthy v. State of California, 2017 Cal. Wrk. Comp. P.D. LEXIS 86, the injured worker argued in favor of use of the “addition method” to combine the various disabilities resulting from her industrial injuries. She noted that her psychiatric, internal and orthopedic impairments do not overlap in their impact on her ADLs.
This is a sound theory. If there had been “substantial medical evidence” to support this, applicant may have been successful at trial. However, there was no medical evidence to support this “no overlap of impact on ADLs” rebuttal theory. Instead, the AME, Dr. Holmes whom the WCAB relied upon in this case, explained that applicant’s various injuries did not conform to the “synergistic effect” rebuttal analysis.
Dr. Holmes explained that applicant’s injuries to her back, heart, psyche, sexual function, and sleep function did not “compound” to increase the impact of her combined injuries on her ADLs. He then noted that if the applicant had injury to her back, hip, knee, and ankle, and if the combination or synergy of these injuries had “compounded” to increase the impact on her ADLs, then she may have been successful in rebutting use of the CVC. However, in the doctor’s opinion, this did not occur.
Dr. Holmes failed to discuss whether or not the various industrial injuries had absolutely no overlap of impact on Ms. Foxworthy’s ADLs. This would probably have been a more viable path to use of the two possible CVC rebuttal methods. The court was therefore unable to support a CVC rebuttal determination without substantial medical evidence upon which to base this decision.
VII. Martinez v. State of California – Facts Don’t Support Either Rebuttal Paradigm
In the NPD of Martinez v. State of California, 2020 Cal. Wrk. Comp. P.D. LEXIS -- [see PDF at end of this article], the court faced a similar problem to that of the court in the Foxworthy case. In Martinez, the WCJ held that the applicant had successfully sustained his rebuttal argument that the addition method should be used over the CVC. The WCAB reviewed the evidence and overturned the WCJ’s decision in favor of applicant, due to “an absence of substantial medical evidence” to support the use of the additive method.
Mr. Martinez was a correctional officer for the State of California’s Department of Corrections. He suffered an admitted cumulative trauma ending on 12/17/2017 to his neck, low back, knees, shoulders and heart.
At deposition, the Internist, QME Dr. Hyman stated the following:
“Question: You diagnosed applicant with hypertension with hypertensive changes to the eye and a 17 whole person impairment, correct?
“Q. The applicant also has a claim for orthopedic injuries. When the parties or trier of fact aggregates the disabilities between the hypertension and the orthopedic injuries, in what manner should that be done?
“Q. Why is that additive?
“A. Because the disabilities from orthopedic and heart don’t overlap. They entirely different organ systems with different kinds of impairment.”
It was certainly a gallant effort on the part of the doctor to attempt rebuttal of the CVC in favor of the “addition method.” However, all the doctor provided was a simple conclusion, but no explanation for his conclusion. In order to constitute “substantial medical evidence” on this issue, Dr. Hyman should have explained which specific ADLs were impacted by the orthopedic injuries, and how they did not in any way overlap with the specific ADLs which were impacted by the hypertensive injury.
This effort by Dr. Hyman was complicated by the fact that the WCAB noticed that Dr. Hyman did not believe applicant’s hypertension impaired applicant’s “activities of daily living” at all. In their opinion, the WCAB noted, “Dr. Hyman found applicant’s hypertension ‘was never labor disabling and would not prevent him from performing his regular job with the employer.’” That might have been the death knell for rebutting the CVC right there, but why? It is a fact pattern that does not neatly conform to either of the CVC rebuttal methods. Given that the evaluating physician gave a conclusion only, and provided no additional explanation as to how and why the “addition method” was more accurate, it left little room for the WCAB to rely on his opinion in that regard.
The primary take-away here is simple. It is the mandate to obtain “substantial medical evidence” in order to prevail on any CVC rebuttal issue. In order to accomplish this goal, careful attention must be paid to what exactly constitutes “substantial medical evidence” when trying to prove that an alternate method of combining of disabilities is more accurate than the CVC. This cannot be done without an airtight opinion from one or more evaluating physicians explaining in detail “how and why” specific ADLs were impacted by the injury of one body part and how the impact on those ADLs either resulted in a “synergistic impact” or did not in any way overlap with the specific ADLs impacted by the other body part or parts. It’s a challenge, but as seen by the case law cited above, it is doable, if done correctly.
Practitioners should check the subsequent history of any cases before citing to them.
Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.
© Copyright 2020 LexisNexis. All rights reserved.