WCDefenseCA

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!