Since the 2013 decision in Athens Administrators v. WCAB (Kite) 78 CCC 213 (writ denied), doctors have found ways of increasing total permanent disability by adding disabilities rather than using the Combined Values Chart (CVC).
Here at the Bradford & Barthel Rating Department, we often see little explanation or reasoning in doctors’ reports for why adding rather than combining disabilities is a more accurate reflection of the residual effects of an applicant’s injury. We often see terms such as “synergism,” “non-overlapping,” or “inability to compensate through the opposite extremity.”
But, as is the case with the Ogilvie, Dahl, and Almaraz/Guzman decisions, opinions that provide alternative rating methods are not automatic. The statutory rating methods are presumed correct and the doctor must provide adequate evidence and reasoning to deviate from the strict use of the 2005 PDRS.
In the appellate decision of Department of Corrections and Rehabilitation vs. WCAB (Fitzpatrick), the appellate justices did not specifically address adding versus combining, but they did focus on the need to provide substantial medical evidence and reasoning to deviate from the AMA Guides. The Court stated that Labor Code section 4660 is mandatory (p. 18) and the 2005 PDRS “shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.” (LC 4660, subds. (c)).
The issues that arose with Kite, however, have not been specifically sent to any District Court of Appeal, nor been addressed by the WCAB en banc. Litigation regarding adding versus combining has not reached any definitive legal conclusion, but continues to be decided on a case-by-case basis.
We note two recent panel decisions in which addition of PD was not accepted due to a lack of substantial medical evidence.
In Martinez v. State of California, Department of Corrections (2020 Cal. Wrk. Comp. P.D. Lexis 51), an Internal AME opined that the applicant’s hypertension should be added to his orthopedic disabilities simply because they did not overlap. The WCAB found no substantial medical evidence in this decision, remarking “otherwise, the CVC would become irrelevant in any case involving injury to multiple body parts” (page 5, line 13).
Similarly, in Torres v. Santa Barbara Community College District (2021 Cal.Wrk.Comp. P.D. Lexis 145), the WCJ issued a decision that added the bilateral shoulders and combining them with the remaining disabilities.
The applicant filed a petition for reconsideration, and argued that the judge should have added the PD from all body parts, and that would render her permanently totally disabled. She contended that all involved disabilities have a synergistic effect and should be added rather than combined.
The WCAB disagreed with the applicant, affirmed the WCJ’s decision and found the applicant did not establish substantial medical evidence for adding the disabilities besides the bilateral shoulders.
There are examples, however, in which the WCAB has affirmed Kite decisions. If the doctor offers a detailed “how and why” explanation for doing so, the panel may agree that adding rather than combining is the more accurate rating of the applicant’s level of disability. (De La Cerda v. Martin Selko & Co. (2017) 83 Cal. Comp. Cases 567 (writ den.).)
Here at the Bradford & Barthel Rating Department, we often find little validity in doctors’ rationales involving “synergism,” “non-overlapping,” or “inability to compensate through the opposite extremity.” We agree that the overall disability and impairment increases in these types of cases, but this is already reflected in the statutory method of using the CVC for each separate rating string, each extremity, and any other body systems that have permanent residuals.
The AMA Guides addresses combining PD for body parts via the CVC chart on page 438, which says, “The method for combining various impairments is based on the principle that a second and each succeeding impairment do not apply to the whole unit (eg. Whole finger) but only to the part or value that remains…after the preceding impairment…has been applied.”
The 2005 Permanent Disability Rating Schedule also notes on page 1-5 that it is not always appropriate to combine all body parts. The PDRS states, “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.”
One should also take into consideration page 4 of the AMA Guides, which reads, “The whole person impairment percentages listed in the Guides estimate the impact of the impairment on the individual’s overall ability to perform activities of daily living, excluding work, as listed in Table 1-2.”
When asserting that PD for multiple body parts should be added versus combined, the doctor should offer a detailed discussion of how this alters the overall consideration of activities of daily living. Oftentimes, suspect physician explanations are best defeated by way of the doctor’s deposition.
For example, when opining that an applicant’s bilateral carpal tunnel impairments should be added due to inability to compensate with the opposite extremity, the doctor should be asked:
- “What ADL issues would be expected solely due to carpal tunnel in the left wrist?”
- “In the right wrist?”
- “How are ADL issues reflected in bilateral carpal tunnel?”
If a doctor’s report does not address these issues and simply states “synergy” or “inability to compensate with the opposite extremity,” then it is our opinion that Kite is not valid.
In conclusion, statutory rating methods are presumed correct. The doctor must provide substantial medical evidence to deviate from the strict use of the AMA Guides or 2005 PDRS. With regards to Kite, this evidence should reflect the overall issues of activities of daily living and thoroughly explain why adding PD rather than combining PD provides for a more accurate rating.
- How to Apply COLA to Lifetime Benefits
- Synergistic or Symbiotic? Addressing Multiple Body Parts, Post-Kite
This article was written by Kenneth Tolbert. Mr. Tolbert is an expert rater and AMA Guides expert at Bradford & Barthel’s Ontario location, where he regularly double-checks physicians’ impairment ratings to ensure that they are consistent with the AME Guides to the Evaluation of Impairment (5th Edition). If you have any questions about the rating of whole person impairment and permanent disability, please feel free to contact Kenneth at 909.476.0552 or email him at firstname.lastname@example.org.
Viewing this website does not form an attorney/client relationship between you and Bradford & Barthel, LLP or any of its attorneys. This website is for informational purposes only and does not contain legal advice. Please do not act or refrain from acting based on anything you read on this site. This document is not a substitute for legal advice and may not address every factual scenario. If you have a legal question, we encourage you to contact your favorite Bradford & Barthel, LLP attorney to discuss the legal issues applicable to your unique case. No website is entirely secure, so please be cautious with information provided through the contact form or email. Do not assume confidentiality exists in anything you send through this website or email, until an attorney/client relationship is formed.