The Workers’ Compensation Appeals Board has issued a new en banc decision clarifying how applicant’s attorneys may rebut the Permanent Disability Rating Schedule to add PD and get higher monetary values.
The commissioners issued a new en banc decision in the case of Vigil v. County of Kern, 89 Cal. Comp Cases, on June 10, 2024. In the decision, the board ruled that although the Permanent Disability Rating Schedule (PDRS) is prima facie evidence of applicants’ levels of permanent disability (PD), it may be rebutted by applicant’s attorneys seeking to increase PD.
The key to understanding this decision is having a comprehension of the Combined Values Chart and the decision in Athens Administrators v. WCAB (Kite) 78 CCC 213 (writ denied). In Kite, the board ruled that after one has successfully rebutted the PDRS, one may add disabilities rather than using the Combined Values Chart.
For instance, let’s take two PD ratings of 10% and 8%. In this example:
- Using the Combined Values Chart, 10 c 8 = 17% PD worth $17,545.
- Using Kite’s call to add the disabilities, 10 + 8 = 18% PD worth $18,995.
As we have discussed in numerous blogs here, here and here, the PDRS is presumed to be correct, and the key to rebutting Kite was having a doctor provide a very detailed explanation about how two injuries to separate body parts had “synergistic effect.” The WCAB’s decision in Vigil expanded upon that and provided two ways to get to a Kite rebuttal.
WAYS TO GET TO KITE’S ADDITION METHOD
While the board collectively calls out those doctors who invoke Kite without offering any analysis or simply throw around the word “synergy,” the board offers two paths to a Kite analysis. The WCAB ruled that the one can add PD when an applicant has proven that either:
- There is no overlap between the activities of daily living (ADLs) between the multiple body parts rated,
- There is overlap between the ADLs, but the overlap actually increases or amplifies the impact on the overlapping ADLs.
The board strongly clarified on p. 8 of its decision that any doctor endorsing these methods “must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions.” (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases, (en banc)).
Kenny Tolbert, an expert rater at Bradford & Barthel, noted in his 2019 blog entry on Kite, many doctors simply fail to do this. A paragraph saying “Applicant has rebutted Kite and I think adding the PD for the wrist and the foot would be more appropriate” is incomplete, speculative, and conclusory. That would not survive the level of scrutiny called for by the WCAB’s Escobedo decision.
Simply put, defendants can and should combat new attempts to get Kite rebuttals by questioning the attempts to rebut the PDRS and impacts on ADLs. With these two methods the board has promulgated an exception that tends to swallow the rule. Bear in mind that the CVC, as with the rest of the PDRS, is statutorily-presumed correct. Yet, the word “presumption” or “presumed” is nowhere to be found in the board’s analysis. The board’s “no overlap” or “overlap with amplification” only serve to make it easier for an applicant to rebut the schedule. In other words, if an applicant can’t get the doctor to show a lack of overlap, he or she can go the other route and show the impact on ADL’s overlap to such an extent that the impact is greater than the single impairment standing alone. Thus, while the CVC is designed to address overlap (presumably all overlap, not just those that are less than what some physician deems greater than normal), its use is essentially relegated to the whims of the evaluating physician as to what constitutes “greater than normal.”
The takeaway from this is that depositions and sub rosa are now more crucial than ever. These are the only ways a defendant can directly challenge and assess the impact of the various injuries on ADLs in order to rebut a doctor’s use of Kite to add permanent disabilities.
IT AIN’T OVER YET
While the en banc decision was issued on June 10, that is not the end of the story. The defendant in the case has several options:
- They can ask the WCAB to reconsider their decision, which is unlikely to change their opinion.
- They can file a petition for a writ of review with the California’s 5th District Court of Appeal. (In this scenario, the 5th DCA could either grant or deny review.)
- They can accept the decision.
We will have to wait and see what the County of Kern does. The timelines for each of these options varies, but we should have a better idea of what they intend to do in the next two months.
CONCLUSION
This decision still only applies to a minority of cases. In the majority of cases, the PDRS should apply and the CVC chart should be used to combine PD ratings.
Defendants should strongly question whether doctors who seek to use Kite are abiding by the Escobedo decision, and continue to seek out objective evidence of ADLs – including sub rosa, social media checks, and subpoenaed records.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin or Louis A. Larres. Mr. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
Louis A. Larres is a partner and area managing attorney at Bradford and Barthel’s Fresno office, and the director of the firm’s Appellate Division. Please feel free to contact Louis at llarres@bradfordbarthel.com or at (559) 221-6500.
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