The Workers’ Compensation Appeals Board issued an en banc ruling formalizing two approaches for rebutting the Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) when an injured worker has injuries to multiple body parts. If rebutted, the rating is arrived at by adding the impairments together, resulting in a higher rating.
The two approved approaches are to:
- Show that there is no overlap between the effects on the activities of daily living (ADLs) between the rated body parts or
- If there is overlap, show that the overlap increases or amplifies the impact on the overlapping ADLs.
The WCAB’s decision in Sammy Vigil v County of Kern applies approaches to rebutting the CVC adopted in prior panel decisions but never ruled upon and adopted by the full board as an en banc decision. The board rescinded the workers’ comp judge’s Findings and Award and ordered it back to the trial level for further proceedings.
Vigil was a maintenance painter for Kern County. The workers’ comp judge in his case found that he had 68% permanent partial disability from cumulative injuries to both hips and his lower back. The workers’ comp judge did not apply a 15% non-industrial apportionment due to age-related degenerative changes.
Notably, the case is another former grant-for-study case that has lingered at the board for several years. The WCAB’s grant-for-study process was struck down by the courts last year as illegal.
PD Rating
“[I]mpairment under the AMA Guides is designed to reflect how a disability affects a person’s activities of daily living (ADLs),” the WCAB notes. ADLs include self-care, communication, physical activity, sensory function, non-specialized hand activities, travel, sex, and sleep.
“Impairments to two or more body parts are usually expected to have an overlapping effect upon the activities of daily living, so that generally, under the AMA Guides and the PDRS, the two impairments are combined to eliminate this overlap,” the board wrote. “For example, impairments to the low back and the knee would likely both affect a person’s physical activity, ability to travel, and potentially other ADLs. In this example, the two impairments would then be combined in a way to eliminate this overlap.”
If the injured worker is able to rebut the CVC, the impairment ratings for the rated body parts are added together to arrive at the permanent disability finding. “The purpose of the CVC, avoiding duplication, does not apply in such cases as the impairments are not duplicative, because the two impairments together are worse than having a single impairment,” the WCAB wrote.
The board noted that adopting these two standards’ the “goal is to explain the known methods of rebutting the CVC and not to exclude the unknown.” The board also stressed that the medical opinion supporting the rebuttal must constitute substantial medical evidence. In Vigil’s case, the qualified medical evaluator concluded that he would have significantly more limitations on ADL after having both hips replaced, but the board says the QME provided little analysis in support of the conclusion.
“Dr. Newton should have reviewed the impacts upon the ADLs in each individual hip, and then explained why the disability in the two hips combined in a way to increase the impact on overall ADLs. Yet, Dr. Newton’s reporting and the present record contain no discussion of ADLs,” the board wrote. “Accordingly, the finding that the impairments should be added is not based on substantial medical evidence.”
Non-En Banc Portion
After reconsidering the non-industrial apportionment issue, the WCAB also issued a decision but did not put it out as an en banc decision. Therefore, its findings on this issue are not citable precedent.
The defense challenged the workers’ comp judge’s finding that there was no age-related, non-industrial apportionment under the Hikida case. The defense argues that because the hip replacement surgeries were successful and did not cause any increase in impairment, they are owed the 15% apportionment.
The principle in Hikida is that medical treatment is not apportionable, and where medical treatment results in additional disability, the resulting disability is also not subject to apportionment. The case involved a failed carpal tunnel surgery that left the applicant with chronic regional pain syndrome.
“We agree with defendant that the WCJ misapplied the holding in Hikida as the basis for finding no apportionment to the hips. Here, applicant had a good result from industrial hip replacement surgery,” the WCAB noted. “However…we conclude that defendant simply failed its burden on proving apportionment to the hips under Labor Code section 4663.”
Copies of the WCAB’s en banc decision in Vigil v. County of Kern are available in our Resources section or by clicking here.
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