Fresno, Bakersfield, Stockton, Bishop,
Oakland, Sacramento, Salinas, San Jose,
San Luis Obispo, Santa Barbara
IS THE COMBINED VALUES CHART REBUTTABLE?
Kite v. Athens Administrators (2013) 78 CCC 213
By A.J. Driscoll
For background, the Combined Values Chart (CVC) is a mathematical equation which has been developed for the specific purpose of combining multiple disabilities for a single date of injury. It was developed in order to compensate for the “overlap” that was caused with multiple injuries stemming from a single industrial injury. When using the CVC, for example, 30 plus 20 does not equal 50, but instead 44.
In the Kite case, the applicant was working as a forklift driver and suffered a CT claim that was admitted to his hips. Following the injury, applicant was taken off work and needed bilateral hip replacements. One of the replacement hips ended up with one poor result and the other a fair result. Following the surgical procedure, applicant had to use a cane to ambulate. The use of his cane caused injury to his left shoulder and wrist as a compensable consequence.
One of the major themes in the case was that the applicant’s surgeries to both of his hips, created a situation where applicant was unable to rely on any “good side,” while the contralateral side was healing, which created what was described as a synergistic effect on the overall recovery and health of the injured worker. That synergistic effect caused significantly more disability to the applicant than if he had a single hip replacement.
The applicant was evaluated by a PQME in his case, and found there was industrial causation. The applicant was assigned 20 WPI (prior to adjustment for age and occupation) for each hip, individually. In his report, the PQME stated the best way to combine the impairments was to add, rather than using the CVC, due to the lowering effect it would have on the total disability. As described by the doctor, the synergistic effect of having suffered injury to the same body parts bilaterally, versus body parts from different regions, requires the CVC to not be used to create the fairest rating.
The defendant in this case petitioned for reconsideration following the WCJ Award, which allowed for the use of addition. In support of the holding the WCJ noted that there was no indication in the Labor Code as to what “combine” means and does not specify a particular formula, but merely favors the reduction formula of the CVC. Additionally, similar to the holding in Almaraz/Guzman, the judge noted that the PDRS and as such, the CVC was rebuttable given the correct circumstances. Eventually, the WCAB would deny the reconsideration, and the First District Court of Appeal would deny the defendant’s Writ Petition.
Following the decision in Kite, there have been multiple decisions, which have commented or even differed from the holding. Borela v. State of CA, DMV (2014) CWC PD Lexis 217 is a panel decision, where the WCJ ordered that addition be used after the applicant had both orthopedic injuries and psychological injuries following an industrial car accident. Following a Petition for Reconsideration, the WCAB reversed the decision and distinguished Kite. The WCAB found there was a lack of substantial medical evidence to support the “how and why” of rebutting the CVC, and the use of the addition method.
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