Taking Kite To New Heights
Analysis of Two Important WCAB Decisions by Kenneth Kingdon, Member of the CLA, Workers’ Compensation Section Executive Committee
In this article, Kenneth Kingdon analyzes two recent WCAB decisions interpreting the Kite decision: Martinez and Conrad Martinez v. State of California, Department of Corrections 2020 Cal. Wrk. Comp. P.D. LEXIS 51
- Adding versus combining nonoverlapping ratings
- Effect of overlap/duplication
The WCAB reversed the WCJ and held that in order to add rather than combine ratings, it is not sufficient that the impairments do not overlap: there must be substantial evidence that adding the ratings is more accurate, although it is not necessary that there be a synergistic effect. The case was not remanded to allow the doctor to address the lack of substantial evidence.
The WCJ agreed with the internal AME who added his rating to the orthopedic ratings because they did not overlap. However, the WCAB overruled the WCJ.
Cases have gone both ways on whether adding ratings can be based solely on the fact that they do not overlap.
In 2017, the WCAB rejected adding nonoverlapping ratings (Newberry v. San Francisco Forty Niners et al. 2017 Cal. Wrk. Comp. P.D. LEXIS 143 and Foxworthy v. State of California, Department of Parks and Recreation 2017 Cal. Wrk. Comp. P.D. LEXIS 86). On the other hand, Sweetman v. Bank of America 2014 Cal. Wrk. Comp. P.D. LEXIS 510, followed by Diaz v. State of California 2015 Cal. Wrk. Comp. P.D. LEXIS 683, Martinez v. Pack Fresh Processors, LLC 2017 Cal. Wrk. Comp. P.D. LEXIS 492 authorized adding ratings solely if they do not overlap. In Devereux v. State Compensation Insurance Fund 2018 Cal. Wrk. Comp. P.D. LEXIS 592, the WCAB permitted adding because the impairments were “separate and distinct.” However, in Devereux the doctor also provided a medical justification for why adding was more accurate than combining the ratings.
Similarly, the doctor in Gonzales v. Cal Fire 2020 Cal. Wrk. Comp. P.D. LEXIS 15, raised the issue of the ratings not overlapping, but the WCAB found that was not sufficient, and remanded the case back to the doctor.
In De La Cerda v. Martin Selko & Co. 2017 Cal. Wrk. Comp. P.D. LEXIS 533 (and subsequently in Casias v. KF Howell Electric, Inc. 2019 Cal. Wrk. Comp. P.D. LEXIS 181), the WCAB’s criteria for adding versus combining was whether adding would be more accurate than using the CVC, and that it was not necessary that there be a synergistic effect, as long as the doctor’s opinion was supported by substantial evidence.
In Martinez, the WCAB cited De La Cerda, but also confirmed that the conclusion must still be based on substantial evidence.
In strong language, the WCAB in Martinez rejected the opinion of the doctor as lacking in substantial evidence, noting that “otherwise, the CVC would become irrelevant in any case involving injury to multiple body parts.”
Section 4660.1(d) states that the Schedule for Rating Permanent Disabilities (PDRS) is prima facie evidence of the percent of permanent disability.
The PDRS states (p. 1-5) that “It is not always appropriate to combine all impairment standards resulting from a single injury, since two or more impairments may have a duplicative effect on the function of the injured body part. The Guides provides some direction on what impairments can be used in combination. Lacking such guidance, it is necessary for the evaluating physician to exercise his or her judgment in avoiding duplication.”
The Guides similarly notes that “Related but separate conditions are rated separately and impairment ratings are combined unless criteria for the second impairment are included in the primary impairment.” (Guides, Section 2.5b, p. 19) (Emphasis supplied).
In other words, if there is overlap, it can result in one of the ratings not being used in the disability determination. The following Guides citation from Chapter 16, the Upper Extremities chapter, notes that often the overlapping disability is not given a rating:
“If the same unit presents several findings, the following rules must be followed to avoid duplication of impairments.” … “In the digits, wrist and elbow, manifestations of joint translocation can include lateral deviation, rotational deformity (digit) and/or subluxation or dislocation in any combination. The impairment values due to these findings cannot be combined, and only the finding with the highest impairment value is rated” (Emphasis supplied) (Guides, Section 16.7a, p. 499). Similarly, in Chapter 17, Table 17-2 (p. 526), the cross-usage chart is designed to “Avoid methods that rate the same condition” (p. 527), precluding some impairments from being rated, and in the Upper Extremities chapter (p. 508), strength loss can only be combined with another impairment “if based on unrelated etiological or pathomechanical causes.”
There is a two-step process in rating multiple impairments. After considering the issue of overlap and determining whether some of the ratings should be reduced in whole or in part, as discussed above, the issue of pyramiding is then addressed, which is the principal function of the Combined Values Chart.
The Guides states (p. 9) that the purpose of the CVC is “…regardless of the number of impairments, the summary value would not exceed 100% of the whole person.”
However, buried in Chapter 16 (p. 438), the Guides explains that the theory behind the CVC is that “a second and each succeeding impairment does not apply to the whole unit but only to the part or value that remains after the preceding impairment has been applied.”
That is the same explanation found in the Fourth Edition of the Guides (p. 3/24) and the Sixth Edition (Sec. 2.2c, p. 23), although in the glossary of the Sixth Edition (p. 610), they also cite the principle of the CVC being designed to prevent impairments from exceeding 100%. The Fourth Edition makes no mention of the purpose of the CVC being to avoid impairments exceeding 100%.
Presumably, if the only purpose of the CVC was to prevent multiple impairments from exceeding 100%, it wouldn’t be necessary to utilize the CVC. Instead, merely stating that the total WPI rating cannot exceed 100% would suffice.
In Hegglin v. WCAB (1971) 36 Cal. Comp. Cases 93, the California Supreme Court addressed the predecessor to the Combined Values Chart (CVC), the Multiple Disabilities Table (MDT), stating “the pyramiding of disabilities is properly avoided, by application of the multiple disabilities rating schedule.”
The term pyramiding, as used by the Supreme Court in Hegglin, is not frequently used, but that is the basis underlying the use of both the MDT for pre- 2005 injuries and the CVC. The formulas for the two methods are similar.
In Romero v. County of San Diego 2019 Cal. Wrk. Comp. P.D. LEXIS 201, the WCAB, citing Hegglin said “…the pyramiding of disabilities is properly avoided by applicant of the multiple disabilities rating schedule.”
In its recent en banc decision (Todd v. Subsequent Injuries Benefits Trust Fund 2020 Cal. Wrk. Comp. LEXIS 35) discussed below, in addressing rating of SIBTF cases, the WCAB provided an analysis of the terms pyramiding and duplication.
When the MDT was in use, the DEU raters would first determine if there was overlap of the work restrictions between multiple impairments. After adjusting for the overlap, the DEU raters would then apply the MDT, whose purpose was to avoid pyramiding.
When California adopted the Guides and the CVC, the principles of overlap and pyramiding did not change. One difference is that overlap for pre-Guides ratings was predominately a DEU function, whereas in the current system, as noted above, overlap is predominately determined by the Guides, although a physician is permitted to address overlap.
Developing the Record
The case was not remanded, likely because the applicant attorney had already deposed the doctor. The WCAB has been liberal on remanding failed Almaraz/Guzman ratings, giving the applicant a second chance, as noted above in Cardona v. Lucky Transportation Company 2019 Cal. Wrk. Comp. P.D. LEXIS 531, as well as in Debone v. Cemex Inc. 2016 Cal. Wrk. Comp. P.D. LEXIS 16 and Torres v. Valdez and Sons 2016 Cal. Wrk. Comp. P.D. LEXIS 306. A series of recent cases provides a good perspective on the WCAB’s position:
In Smith v. Golden Gate Highway and Transportation Dist. 2019 Cal. Wrk. P.D. LEXIS 440, the WCAB noted that the record should first be supplemented by physicians who have already reported in the case, citing its en banc decision in McDuffie v. LA County Metropolitan Transit Authority (2001) 67 Cal. Comp. Cases 138.
In Stephens v. Cox Enterprises, Inc. 2019 Cal. Wrk. Comp. P.D. LEXIS 402, the WCAB noted that the WCJ or the Board may not leave undeveloped matters requiring further evidence, citing Telles Transport, Inc. v. WCAB (2001) 66 Cal. Comp. Cases 1290. However, in Stephens, the WCAB noted that as the doctor had already been provided an opportunity to supplement her opinion, the parties should either agree to use a new AME or the WCJ would appoint a regular physician.
In Davis v. Pacific Bell Telephone Co. 2019 Cal. Wrk. Comp. P.D. LEXIS 405, the WCAB noted that when a party who carries the burden of proof submits evidence that is not adequate to meet that burden, the Appeals Board will not direct the augmentation of the record where there is sufficient evidence in the record to support a final determination. However, the WCAB has been liberal in not challenging doctors’ Almaraz/Guzman ratings, so these decisions should not have a large impact on whether to add or combine ratings.
The WCAB also reconfirmed its decision in De La Cerda, stating that it was not necessary for there to be synergy in order to add rather than combine ratings, as long as there is substantial evidence to prove it is more accurate to add than combine.
At almost the same time that Martinez was being decided, the WCAB issued a contrary decision in Evans v. Richards Appliances Services 2020 Cal. Wrk. Comp. P.D. LEXIS 44. The WCAB incorporated by reference the Report and Recommendation of the WCJ, who awarded 100% P.D. based on an AME’s opinion that it was appropriate to add rather than combine ratings from different specialties because they did not overlap. It is a good case for applicants to cite for negotiation purposes, but it is not only contrary to the current trend at the WCAB on this issue, but it was based on the Report and Recommendation of the WCJ, in a case with multiple issues, without the WCAB issuing an opinion themselves on any issue. In future litigation, the WCAB is likely to require substantial evidence on why it is more accurate to add rather than combine nonoverlapping ratings.