As we enter the final stretch of summer, it’s an opportune time to review the latest developments in the legal landscape. Whether you’re an employer, employee or legal professional, staying informed is crucial for navigating the complexities of the ever-evolving workers’ compensation system.
We at Mullen and Filippi hope that you continue to enjoy the summer season and wish you all the best!
WCAB ISSUES EN BANC DECISION ON REBUTTING COMBINED VALUES CHART
The Workers’ Compensation Appeals Board (WCAB) recently clarified the process for rebutting the combined values chart (CVC) in the Permanent Disability Rating Schedule (PDRS) in the en banc decision, Vigil (Sammy) v. County of Kern (2024) 89 Cal. Comp. Cases (2024 Cal. Wrk. Comp. LEXIS 23).
In Vigil, the applicant, a maintenance painter, alleged a specific injury of December 7, 2017, and a cumulative trauma type injury through February 7, 2018, to his hips and back. Thereafter, Applicant was evaluated by QME Dr. Peter Newton. Dr. Newton assigned a 15% whole-person impairment (WPI) to the right hip, a 15% WPI for the left hip and a 7% WPI for the lumbar spine. With respect to apportionment, Dr. Newton opined that 15% of Applicant’s impairment resulted from non-industrial conditions and 85% to continuous industrially related trauma. At deposition, Dr. Newton testified that Applicant’s impairment for his bilateral hips should be added, rather than combined, based on the Kite decision. In support of his opinion on this issue, Dr. Newton said that “[s]omebody with limitations due to both hips is going to have significantly more limitations than if somebody had one normal hip and one hip they had surgery on.”
Following trial, the Workers’ Compensation Judge (WCJ) calculated the applicant’s permanent disability by adding the impairments for the bilateral hips and then adding the total to the impairment to the lumbar spine, which produced a 68% permanent disability rating. The WCJ did not apply the 15% non-industrial apportionment to the hips based on the Hikida decision, noting that the disability was the result of Applicant’s hip replacement surgery.
Defendants filed a Petition for Reconsideration on the issue of the calculation of permanent disability, including the application of the Kite analysis to add the impairment for the hips, and whether apportionment was properly excluded.
In its Opinion and Decision After Reconsideration, the WCAB held En Banc that:
The CVC in the PDRS may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either:
- there is no overlap between the effects on ADLs as between the body parts rated; or
- there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs.
The WCAB noted that in prior panel decisions, two methods have been used to rebut the CVC. In the first approach, the CVC had been rebutted where there was evidence showing “no actual overlap” between the effects on ADLs as between the body parts (emphasis added). In the second approach, the CVC has been rebutted where there is overlap, but the overlap creates a “synergistic effect” on ADLs (emphasis added).
The WCAB explained that with the first approach (no overlap of ADLs), one significant point of confusion on the issue of overlap is that the analysis should focus on overlapping ADLs, rather than body parts. In order to rebut the CVC, an applicant must present evidence explaining what impact Applicant’s impairments have had on their ADLs. If the medical evidence demonstrates that the impact on ADLs overlaps, without more, an applicant has not rebutted the CVC. However, if the medical evidence demonstrates that there is an absence of overlap, the CVC is rebutted and need not be used.
The Court focused its attention on the second approach (overlapping ADLs with a synergistic effect), citing the Kite decision, where applicant was awarded permanent disability by adding, rather than combining impairment for the bilateral hips, due to medical evidence showing the synergistic effect of the two impairments. The Court said that in some cases, two impairments overlap in their effect on ADLs, such that they amplify each other to cause further impairment. In these situations, it is permissible to add impairments due to their synergistic amplification on ADLs.
The WCAB said that “[w]e cannot emphasize enough” that to constitute substantial medical evidence, “… a medical opinion 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 604, 621 (Appeals Board en banc), (emphasis added). The Court said that the word ‘synergy’ “is not a ‘magic word’ that immediately rebuts the use of the CVC. Instead, a physician must set forth a reasoned analysis explaining how and why synergistic ADL overlap exists.” The WCAB said instead of focusing on whether a specific term, such as synergy, is used, the parties should focus “on an analysis that applies critical thinking based on the principles articulated in Escobedo to support a conclusion based on the facts of the case.”
Given that Dr. Newton concluded that Applicant would have more limitations after having both hips replaced, without providing further analysis in support of his opinion on the issue, the Court held that his finding that the impairment should be added was not based on substantial medical evidence. §
The WCAB also held (not en banc) that the WCJ misapplied the holding in Hikida as the basis for finding no apportionment to the hips, noting that Applicant had a successful hip replacement surgery. However, the Court also said that Defendants failed to meet its burden of proving apportionment to the hips pursuant to LC Section 4663 because Dr. Newton’s opinion on apportionment was conclusory and was not substantial medical evidence.
PRACTICE TIP: Claimants attempting to rebut the CVC due to a lack of overlap with ADLs and body parts should be aware that the focus is on the effects of the injury on ADLs and not on the body parts at issue. Practitioners should be aware that if a physician opines that an applicant’s impairment should be added due to a synergistic effect on the impact of ADLs, the physician must set forth a reasoned analysis explaining how and why the synergistic ADL overlap exists.
Vigil v. County of Kern, Opinion and Decision After Reconsideration
CAL/OSHA ISSUES ADVISORY TO PROTECT WORKERS FROM HIGH HEAT
On July 19, 2024, the State of California Department of Industrial Relations (DIR) issued an advisory noting that Cal/OSHA is urging employers to protect employees from high heat across the state of California. As noted in the advisory, temperatures in Redding, Chico, Modesto, Sacramento, Fresno, Bakersfield, Stockton and Imperial County exceeded 100 degrees. Employers are responsible for identifying and addressing all workplace hazards, including heat, in both indoor and outdoor settings. Employers must use their Injury and Illness Prevention Program (IIPP) to protect indoor workers from heat and illness. In outdoor settings, employers must protect workers by providing water, rest, shade and training.
SAN BERNARDINO DISTRICT OFFICE TO CLOSE TEMPORARILY
On July 18, 2024, the DIR announced that the San Bernardino District Office of the WCAB will close temporarily for six to eight weeks starting on Monday July 22, 2024, due to excessive heat and necessary repairs to its currently inoperable air conditioning system. For trials set to take place during the time of closure, parties have been instructed to call in to the assigned judge’s conference line.
This Bulletin was written by Steve Rosendin, Associate Partner in our San Francisco office. A copy of this Bulletin and the most current twelve months are available on our website at www.mulfil.com/bulletins.
