Workers' Compensation

Reconsidering Kite in Light of Fitzpatrick

By Peter Golden

Introduction

Since the Kite[i] decision issued in 2013, there have been a number of cases, nearly all Board Panel Decisions, which have discussed the issue of adding versus combining of disabilities. None of the cases that I have found consider whether or not the reasoning in Kite was sound. From the defense perspective, the reasoning in the case just never made sense to me. The reasoning failed to explain how the reference in the AMA Guides to other methods of combining disabilities, which was only with respect to the determination of the whole person impairment, came to be applied to the end of the rating string, after the various whole person impairments had already been multiplied by the FEC (or standard 1.4 multiplier) and adjusted for age and occupation. I took a deeper look at Kite after the WCAB’s position on the subject was criticized by the Court of Appeal in the Fitzpatrick decision. Following that analysis, I believe the WCAB should reconsider its position and come to the conclusion that the CVC was intended to be mandatory.

Kite relied on a case whose application to post-SB 899 ratings was overturned by Fitzpatrick

In Fitzpatrick, the Third District Court of Appeal removed Labor Code §4062(b) as a means to find permanent total disability “in accordance with the fact.”[ii] In doing so, it overturned application of one of the cases on which Kite relies and went out of its way to criticize the WCAB’s argument in favor of the Kite doctrine.

Kite relied on LeCornu[iii] for the argument that “the Multiple Disabilities Table is a guide only” to which the WCJ analogized the CVC. LeCornu considered the 1997 Schedule and went on to find permanent total disability “in accordance with the fact” under Labor Code §4662. Although permissible under the 1997 Schedule, Fitzpatrick makes clear that SB 899 intentionally changed how permanent disability was to be determined and overturned the application of cases like LeCornu to cases rated under the 2005 Schedule, like Kite.

The Court of Appeal in Fitzpatrick went out of its way to criticize the WCAB’s attempt to insert the Kite arguments regarding adding disabilities versus combining disabilities. In Footnote 14, the Court of Appeal stated,

Although we do not consider the Board’s new theory [adding disabilities versus combining disabilities], 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.[iv]

Although the statement quoted above is dicta, the reasoning is persuasive. Further, Fitzpatrick does preclude the application of LeCornu, on which Kite relied, to cases post-SB 899. As such, the reasoning in Kite merits reconsidering.

Kite mistakenly analogized the Combined Values Chart to the Multiple Disabilities Table

Kite claimed, “[N]owhere in the Labor Code, the rating schedule or the AMA Guides is “combine” defined as entailing [the reduction method], or any particular method. The schedule provides that impairments are generally combined using the [reduction] formula.”[v] I believe that statement is incorrect.

In the cases cited by the WCAB a common theme is the statement that the MDT is “a guide only”. The WCAB uses the MDT as an analog to the Combined Values Chart and attempts to apply the same reasoning. For instance, in LaCount[vi] the WCAB asserted the “Combined Values Chart and Multiple Disabilities Table have always been considered guides only.” The flaw in this reasoning is that the opinion that the MDT was a “guide only” was not a judicial interpretation, but rather was specifically included in the language of both the 1988 Schedule[vii] and the 1997 Schedule[viii]. As the Court of Appeal points out, this language does not exist in the 2005 Schedule[ix]. There is no permissive language and no longer does the Schedule itself state that the method of combining disabilities is to serve as a guide only. To the contrary, in Section 8 of the 2005 Schedule, it now states, “Use this chart to combine two or more impairments, or two or more disabilities.” (Emphasis added.)

As lawyers, we generally find it significant when a statute deletes language and uses new language. The reasoning in Kite ignores this significance. Here, the language stating that the MDT was only a guide was deleted and new language was added directing the user of the 2005 Schedule to “use this chart [the CVC] to combine two or more impairments, or two or more disabilities.” The discretionary language of the prior schedules is gone.

In short, there is no indication in the 2005 Schedule that anything other than combining using the Combined Values Chart can be done after an impairment standard has been adjusted by 1.4 per LC §4660.1(b), age, and occupation. Instead, as I have argued in other articles, a complete reading and analysis of the 2005 Schedule for Rating Permanent Disabilities reveals the CVC is the mandatory method of combining disabilities.

Adding post-adjustment ratings is not within the four corners of the AMA Guides

The proponents of the Kite reasoning use Guzman[x] for the proposition that the medical evaluator may use the “four corners” of the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition to produce an analogy rating. Admittedly, the AMA Guides does refer to alternative methods of combining impairments in section 1.4, entitled “Philosophy and Use of the Combined Values Chart.” However, the reasoning appears to stop there.

What seems to be lost in the Kite cases is that the alternate means of combining disabilities discussed in the AMA Guides is only regarding the whole person impairment (WPI) provided by the medical evaluator. As the WCAB has stated in an en banc decision, the AMA Guides simply produces the initial component of a permanent disability rating.[xi] That initial component is the WPI.

Instead, the WCAB has been applying the alternate method of combining after the each individual WPI determination has already been multiplied by 1.4 and then adjusted by age and occupation. There is absolutely no basis to take the theoretical statements from section 1.4 of the AMA Guides, which were clearly discussing pre-adjustment combining of impairment, and applying them to post-adjustment combining of disability.

If such an alternate method of combining were to be allowed within the four corners of the AMA Guides, it should only be done at the WPI level. But this is rendered impractical in California because the rating schedule mandates that multiple impairments be adjusted separately prior to being combined by the Combined Values Chart.

It is also ignored in most discussions of the issue that the AMA Guides also acknowledges, in the same section in which it discusses alternative methods of combining, that some states have mandated alternate methods. The AMA Guides states, “Many workers’ compensation statutes contain provisions that combine impairments to produce a summary rating that is more than additive.”[xii] California, with its use of the 1.4 multiplier that is separately applied to each impairment, is one of those states.

Conclusion

The reasoning set forth in Kite and its progeny actually runs contrary to the intent of the California Legislature which was to “promote consistency, uniformity, and objectivity in the overall process of determining disability across individuals” and to “provide a system that is objective and uniform in application.”[xiii] Clearly, the intent was to simplify and standardize. Instead, the cases following Kite have created inconsistency and lack of uniformity. This is especially true since most medical evaluators whose depositions I have taken have little to no understanding of how their opinion on WPI compares to the post-adjustment permanent disability rating.

Fortunately, these errors can be corrected. Kite and La Count are the only decisions supporting the adding of disabilities which have reached a Court of Appeal and both were simply denied writs by the respective Court of Appeal. As I discuss here, the reasoning in Kite is called into question both by the Court of Appeal in Fitzpatrick as well as by an analysis of the misapplication of the “only a guide” phrase. La Count, to the extent of its reliance on Labor Code §4662(b), is overturned by the Fitzpatrick decision. The remaining cases are simply board panel decisions, which are not binding precedent. It is time to reconsider Kite. At least one California Court of Appeal agrees.

By Peter M. Golden, SRTK Senior Associate, San Diego Office
© Copyright 2019 by Peter Golden. All rights reserved.


[i] Athens Administrators v. W.C.A.B. (Kite) (2013) 78 Cal. Comp. Cases 213.

[ii] Department of Corrections and Rehabilitation v. W.C.A.B. (Fitzpatrick) (2018) 27 Cal. App. 5th 607.

[iii] County of Los Angeles v. W.C.A.B. (LeCornu) (2009) 74 Cal. Comp. Cases 645 (writ denied).

[iv] Department of Corrections and Rehabilitation v. W.C.A.B. (Fitzpatrick), supra, 27 Cal. App. 5th at p. 624, fn 14, emphasis in original.

[v] Athens Administrators v. W.C.A.B. (Kite), supra, 78 Cal. Comp. Cases at p. 215.

[vi] Los Angeles County Metropolitan Transportation Authority v. W.C.A.B. (La Count) (2015) 80 Cal. Comp. Cases 470 (writ denied), which found permanent total disability “in accordance with the fact” for a post 2005 injury and which supported adding disabilities instead of using the CVC.

[vii] Under the title, “Combining Multiple Disabilities”, the 1988 Schedule uses the following language: “The result obtained by such calculation is not necessarily to be adopted as the final rating for combined disabilities but should serve as a guide only. The final rating will be the result of consideration of the entire picture of disability and possibility of employability.” (1988 Schedule, p. 81, emphasis added.)

[viii] Under the title, “Combining Multiple Disabilities,” the 1997 Schedule uses similar but different language: “The result obtained by the calculation is not necessarily to be adopted as the final rating for the combined disabilities but should serve as a guide only. The final rating will be the result of consideration of the entire picture of disability and iminished ability to compete in an open labor market.” (1997 Schedule, p. 7-12, emphasis added.)

[ix] In contrast, consistent with the substantial changes instituted pursuant to SB 899 in 2004, under the title “Section 8 – Combined Values Chart,” the 2005 Guides now states, “Use this chart to combine two or more impairments, or two or more disabilities.” (2005 Schedule, p. 8-1, emphasis added.)

[x] Milpitas Unified School Dist. v. W.C.A.B. (Guzman) (2010) 187 Cal. App. 4th 808

[xi] Blackledge v. Bank of America (2010) 75 Cal. Comp. Cases 613, 619.

[xii] AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, section 1.4, page 10, emphasis in original.

[xiii] Department of Corrections and Rehabilitation v. W.C.A.B. (Fitzpatrick), supra, 67 Cal. App. 5th at p. 622, citing Milpitas Unified School Dist. v. W.C.A.B., supra, 187 Cal. Capp. 4th at p. 823, and Ogilvie v. W.C.A.B. (2011) 197 Cal. App. 4th 1262, 1273.

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