Tag Archives: Kite

On Being Vigilant Against Kites

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Happy Friday, dear readers! Are we all over the shock that rumors of your humble blogger’s incarceration, demise, and/or loss of his blogging fingers have all been exaggerated? 

Well, let’s play a bit of catch up, shall we?  How about a discussion of Kite and Vigil?

First, a brief history!  The Permanent Disability Rating Schedule from 2005 calls upon us to combine various ratings for a final permanent disability.  So, a fall that results in injury to the back and the knee would ultimately be combined using the PDRS formula.   20% for the lumbar spine and 20% for the knee would not add up to 40% ($58,290) but instead combine to 36% ($50,170.00).  But as we get up higher in numbers the combined values yield more significant results.  Two impairments of 50% each, rather than adding to 100% would instead be 75%.  The basic formula is a (first PD) plus b (second PD) x (1 – a)

So, if we have 50% and 50%, the formula would be .50 + .50(1-.50) = .75 or 75% PD.

Then, of course, came the Kite decision.  In Athens Administrators v. WCAB (Kite), the PQME found impairment to both hips, and opined that the impairment should be added rather than combined.  The WCJ approved this approach and despite defendant’s appeals, the ruling was not disturbed by the WCAB or by the Court of Appeal. 

After some back and forth with various panel cases interpreting the theory, some limiting some expanding its application, the WCAB took matters into its own hands.   In the June 2024 En Banc decision in Vigil v. County of Kern, the WCAB endorsed the practice of adding rather than combining impairment, but only when “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.”

In the Vigil case, applicant sustained a CT to the bilateral hips and low back.  The WCJ added the hips and combined the combined that amount with the back.   So, the Vigil decision held that when there is no overlap of ADLs, the PD for the body parts should added rather than combined.  (As an aside, dear readers, is it now fair to call applicant attorneys pushing for adding rather than combining impairment… Vigilantes?)

For example, a left knee injury which impacts standing and walking might not overlap with a psyche claim or an eye injury which limits sight.  Likewise, when a person might otherwise use a left hand to compensate for a right hand injury, but now both hands are injured, the impact on ADLs is synergistic and triggers adding impairment.

But the en banc decision also provided guidance and gave the defense some maneuvering space in making arguments.  For example, the decision notes “[w]e cannot stress enough that to constitute substantial 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.’” (emphasis original).  The WCAB places the burden on the party attempting to deviate from the CVC (combining method) to explain why the adding method is justified, through an articulated discussion of the synergistic effect and overlapping ADLs. 

The burden is applicant’s to show that (1) the ADLs do NOT overlap or (2) the ADLs overlap in such a way as to “increase or [amplify] the impact on the overlapping ADLs”.

Without naming names, I can think of a few medical-legal evaluators that will need hand-holding through a deposition in order to meet the requirements of the burden of proof on various issues, whether apportionment or Almaraz/Guzman or Kite/Vigil. 

One odd thing about the result here is, though, that the Vigil court returned this matter to the trial level for the WCJ to consider developing the record.  But why?  There is a rateable report in the record already using the combined values chart.  The fact that applicant failed to carry the burden of proof on rebutting the CVC does not mean the record is not developed, only that the burden was not carried.  If your humble blogger was calling the shots (which he always does in his imaginary arguments), an Award would have issued on the current record using the CVC.

Of course, for good reason, our system of checks and balances keeps such crazy ideas out of decision-making process.

WCAB Rejects Psyche Kite Again

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Welp, it’s Wednesday, dear readers, and your humble blogger is here for you with yet another blog post.

Fortunately, this post is good news – another successful decision reached thanks to the efforts of the attorneys at State Compensation Insurance Fund!

Before we get into the meat of the issue, your humble blogger would like to voice an additional objection to this whole “adding instead of combining” disabilities trend.   When your humble blogger was just knee high to a grass hoper, I was full of opportunity and promise, just like everyone else.  Potential was a plenty.  It seems truly unfair now that the WCAB seems to be inclined to impose upon us the very thing we hoped to avoid by going to law school: math!

Accordingly, your humbleblogger hopes we can return to the magic of the combined values chart rather than the pain of the adding of impairments.  Nevertheless, on to the panel opinion!

The panel decision is Martinez v. Sousa Tire Sevice, insured by SCIF.  Applicant’s impairments on an accepted case were rated as 77% PD for orthopedic injuries, 62% for CRPS, and another 26% PD for psychiatric disability.  While the orthopedic and CRPS were combined to yield 91% PD, the psychiatric impairment was added to reach 100%.  Had the 26% PD for the psyche been combined with the 91% for the orthopedic and CRPS, of course, the result would have been 98%.  Now, you might be thinking, dear reader, that there isn’t much difference between 98% and 100%, but your humble blogger could not possibly disagree with you more.  While 100% includes a life pension at the TD rate, 98% is significantly less, or at least it can be depending on the circumstances.

Anywho, the psychiatric treating physician wrote a report expressing support for adding the psychiatric impairment to the orthopedic impairments, “given tat the psychiatric impairment does not overlap with his orthopedic impairment.”  The panel rejected this opinion.  Distinguishing the Kite decision, the panel noted that in Kite, the two body parts being “added” rather than combined were both within the reporting physician’s expertise, and the two impairments caused a “synergistic” effect, justifying the addition.  The panel continued: “[i]n contrast, here one specialist is suggesting that we add impairments found by her in her own specialty to impairments in a completely different body system found by a different specialist.”  The case was sent down to the trial level for a new finding of PD and attorney fees.

Does this reasoning sound familiar? It will to my most learned and diligent readers.  This was the same logic used to rejecting adding impairments in the panel decision of Bradley v. State of California. 

Certainly good news for the employer in this case, but on a broader scale this should encourage us to challenge those Kite ratings and not shy away from litigating the issues. 


Until next time…

Bradley vs. Kidd – Revisiting Kite

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Happy Wednesday, dear readers!  Last week, your humble blogger wrote about the Bradley panel decision, in which the WCAB held that a Kite addition was inappropriate as between two different systems of impairment (psyche and orthopedic) because neither reporting physician was competent to comment on whether the two should be added or combined. I also received a bizarre e-mail from the publishers of The Kite Runner (great book by the way!) telling me to stay away from their author and his kites.

One of my beloved readers sent me a copy of the WCAB’s decision in Kidd v. Alameda Contra Costa Transit District, another relatively recent panel decision from September of last year, which appears to go the other way from Bradley (no, dear readers, I’m not Kidding you…)

Applicant Kidd had claimed injury to her head, neck, back, shoulders, and psyche as a result of an MVA while working as a bus driver.  The psyche AME assigned WPI based on a GAF score of 55, and found that 70% of the psychiatric disability was caused by the MVA, 20% by the pain and physical problems resulting from the MVA, and 10% by non-industrial factors.

The orthopedic AME found 26% WPI for the cervical spine, 10% for the right shoulder, and gave a 3% pain add-on, also finding that 100% of the orthopedic permanent disability was caused by the MVA.

When asked, he psyche AME opined that adding the psyche WPI to the orthopedic WPI (as opposed to combining the two) was the best approximation of the disability because the orthopedic injuries diminished motivation to engage in activities, while the psychiatric disability lowered effectiveness of medical intervention. 

At trial, the WCJ added the permanent disability rather than combine it, resulting in an award of 92% PD.  Defendant appealed arguing that the appropriate PD is a combination of the 54% PD from the orthopedic claim and the 38% PD from the psychiatric conditions (this would have resulted in a final PD of 71%.

The WCAB denied reconsideration, adopting the reasoning of the psyche AME and the trial judge.

Your humble blogger of course was not participating in this case at all and is just being a Wednesday-morning quarterback, a back seat driver, an armchair general, etc.  So, of course, I’m going to handle this issue with Kidd gloves.  But looking at the breakdown and the reasoning from the psyche AME, we have 20% causation of the psychiatric permanent disability resulting directly from the effect of the orthopedic injuries, rather than the psychiatric injury directly from the MVA.  We also have the justification for adding permanent disability rather than combining it based on the orthopedic injuries causing withdrawal and less enjoyment in life.

In other words… aren’t all of these psychiatric issues compensable consequence of the orthopedic injury?  After all, we have the “pure” psychiatric injury resulting from the MVA, which is the cause of 70% of the permanent psychiatric disability.  But when you get to justifying the adding of impairment and 20% of the cause of the permanent psychiatric disability… aren’t all of these compensable consequences?

Well, then let’s look at Labor Code section 4660.1(c)(2) which specifically prohibits us from increasing permanent disability for psychiatric compensable consequences absent certain circumstances.  From your humble blogger’s review of the Kidd decision, it does not appear that the WCAB panel, nor the trial Judge, addressed 4660.1 as an argument so it’s not clear if it was raised.  But it would be interesting to try this argument should similar facts come up.

Furthermore, and, again, looking at the Bradley decision from last week – is the psychiatric AME competent to comment on the “synergistic” effect, or lack there of, between orthopedic and psychiatric disability?  Bridges only work if they connect both sides, so while the psychiatric AME might be in a good position to conclude that the orthopedic injuries increase the psychiatric burden, what is the evidence that the psychiatric impairment is increasing the burden on the orthopedic injury?

Recall please, the original Kite decision had to do with a panel QME concluding that the impairments assigned to each hip should be added instead of combined.  The same PQME had examined applicant for both hips and was competent to comment on hip impairment.  Kidd is taking it a step further.   In other words, to the Kite is the mommy goat, then Kidd is the… well… the Kid. 

Seeing how your humble blogger has exhausted his supply of both Kidd puns and comments, here’s hoping to see you on Friday again, dear readers!

WCAB Rejects Kite Claim for Different Body Systems

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Happy Wednesday, dear readers!

Your humble blogger is big enough to admit that he’s an odd duck.  For example, as his classmates took nothing but delight in flying kites, your humble blogger was not one of those boys that enjoyed such things.  In fact, nothing made me happier, while walking on San Francisco’s Ocean Beach listening to “Smooth Jazz KKSF” to see a kite go down.  “That’s what you get” I would think to myself.  I already admitted to being an odd duck, what more do you want, dear readers?

Anywho, as I grew up, my listening tastes changed, but the delight in seeing a kite crash and break apart is still there.  So, with that little bit of glee, I offer you the panel decision of Bradley v. State of California.  Applicant, a corrections officer, sought reconsideration of a WCJ’s ruling that he sustained 90% PD (85% orthopedic, 23% skin disability, and 17% hearing disability) and instead argued that he was permanently totally disabled as the WCJ should have added his disability rather than combined it.

Applicant argued that the various conditions do not overlap, and thus should not be combined but added.  The WCAB rejected this claim, however.  Citing the WCAB’s decision in Kite, this panel articulated the rule that “adding, rather than combining, two different impairments better reflected a worker’s impairment when substantial medical evidence supported the notion that the two impairments in effect combined and the resultant impairment was more than the sum of the two impairments.” 

Of particular importance to the Bradley panel was the fact that in Kite, the evaluator wanted to add body parts/conditions that were all within that evaluator’s area of expertise.

By contrast, Mr. Bradley’s evaluators were all in different specialties (orthopedics, skin disability, and hearing) and so any opinion that the conditions should be added rather than combined would be outside of any of the physicians area of expertise.

Of interest, based on the opinions of the skin QME, the WCAB granted reconsideration to allow applicant to plead a separate CT for skin cancer because the QME opined the causation was different for skin cancer as opposed to the orthopedic and hearing loss claims.

So, what can we take away from this? 

The holding in Bradley reaffirms that in order to do a Kite rating, the two conditions to be added rather than combined most both be in the expertise of a single medical-legal evaluator. 

Further, to the extent that practitioners can parse out causation, defendants may be able to force a separate cumulative trauma.  So, if a CT is claimed for three body parts or systems over the same period of time (as an example, orthopedic knee injury, lung cancer, and skin irritation from cleaning chemicals), if the causation is different on the three systems, perhaps applicant could find himself with three awards of 20% each rather than a combined award of 49% PD.

All in all, the Bradley decision is not a bad one to keep within reach for reference, no?

Now, if you’ll excuse me, I’m going to make some children cry but cutting the lines to their kites (in honor of Bradley).  Till Friday, dear readers!