Happy Monday, dear readers!

It’s rare enough that your humble blogger can bring you some good news, but today is one of those days – as lukewarm as it is.

Recently the Court of Appeal denied review in the matter of Foxworthy v. State of California.  The basic thrust of the case was that applicant sought to have the combined values chart of the permanent disability rating scheduled tossed out, and for the use of the simple addition method to be adopted instead.

The difference between the two ratings was apparently rather steep – the combined values chart yielded a result of 67% PD while the addition method resulted in 92% PD. We can all imagine a defendant in this scenario weighing the two values and deciding a few dollars in the litigation budget might be worth it.

Initially, the majority of the commissioners noted that Labor Code section  4660(c) mad the 2005 PDRS prima facie evidence of applicant’s permanent disability, including the combined values codes.  The majority opinion then recognized that the CVC “should ordinarily be applied unless there is some overriding reason to use a different accounting for multiple impairments.”  (query: should “I want more money!” be an overriding reason?)

One of the AMEs opined that the CVC should be used (rather than just adding the impairments up) because the various impairments do not “confounded” by her other impairments (her sexual dysfunction does not affect her lumbar impairment, nor does her psyche claim or respiratory issues, as opposed to, for example, a bad hip.)  To quote the good doctor, “I do not find that her psychiatric comorbidity, her hypertension comorbidity[,] or sexual dysfunction comorbidity adversely affects her ability to compensate.”

The majority adopted this line of thinking and ruled that the CVC controls.

The interesting thing is that I’m seeing this more and more in letters to the AME or QME (for those of my readers that are applicant attorneys, please don’t get any ideas.  This is a bad practice – shame on you!)

Sometimes the QME/AME will be inclined to give the applicant more PD and will just say “sure, why not?”  But here we have some reasoning from two commissioners of how to establish a defense to this approach.  One line of inquiry to take to the QME/AME is “how much does applicant’s ability to compensate for these restrictions get impacted by the other impairments?”  Based on this split panel opinion, at least, if there’s impairment 1 doesn’t impact applicant’s ability to compensate for impairment 2 in functionality, the CVC should not be rebutted.

Now let’s get into the section of splitting hares.

I mean hairs…

In the Foxworthy case, the spread is huge! 67% vs. 92% is a big difference!

What happens when the QME or AME says that the CVC doesn’t adequately represent applicant’s impairment, but simply adding is overkill?  Does the QME have to choose one or the other?  If neither is just right, is that sufficient to rebut the CVC?

I can give you the answer, dear readers, but you’re going to have to get me on California’s Supreme Court bench first!