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.