On June 10, 2024, the Appeals Board issued a combined en banc decision and panel decision clarifying the known methods of rebutting the Combined Values Chart (CVC). In this case Sammy Vigil was employed by the County of Kern as a maintenance painter, and he claimed injury to his hips and back on December 7, 2017 and also injury caused by continuous trauma.

Following trial, his cumulative injury was found to be industrial, and the WCJ found, that applicant sustained 68% permanent partial disability by adding the impairment to applicant’s left and right hip pursuant to East Bay Municipal Utility District v. Workers’ Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers’ Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.

The employer filed a Petition for Reconsideration and argued that the WCJ misapplied the analysis in the Kite decision because the opinion of the qualified medical evaluator (QME) was not substantial evidence and does not support rebuttal of the Combined Values Chart (CVC). Next, it contends that the WCJ erred in applying Hikida, because applicant’s hip surgeries were successful and did not cause any increase in impairment.

In its Decision After Reconsideration (En Banc), the WCAB rescinded the WCJ’s F&A and returned this matter to the trial level for further proceedings consistent with the opinion in the case of Vigil v County of Kern 2024-EB-03 (June 2024)

Applicant was evaluated by QME Peter Newton, M.D., who authored four reports in evidence and was deposed. He assigned 15% whole-person impairment (WPI) to the right hip, 15% WPI to the left hip, and 7% WPI to applicant’s lumbar spine. 15% of this applicant’s lumbar spine and right and left hip condition/disability/impairment was apportioned to age-appropriate and age-related degenerative changes and 85% to the continuous trauma of his work through 03/26/18.

In his deposition he applied Kite when he said “Somebody with limitations due to both hips is going to have significantly more limitations than if somebody had one normal hip and one hip that they had surgery on.”

Impairments to two or more body parts are usually expected to have an overlapping effect upon the activities of daily living, so that generally, under the AMA Guides and the PDRS, the two impairments are combined to eliminate this overlap.As an element of the PDRS, the CVC may also be rebutted, and when the CVC is rebutted, those impairments may simply be added.

“In our panel decisions, two methods have been used to rebut the CVC to date. In the first approach, the CVC has been rebutted where there was evidence showing no actual overlap between the effects on ADLs as between the body parts rated. In the second approach, the CVC has also been rebutted where there is overlap, but the overlap creates a synergistic effect upon the ADLs.”

“We believe that one significant point of confusion on the issue of overlap is that the analysis should focus on overlapping ADLs, not body parts.”

“The Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either: (a) there is no overlap between the effects on ADLs as between the body parts rated; or (b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs.”

The Appeals Board emphasized that rebuttal of the CVC requires a critical analysis of the impacts upon applicant’s ADLs and is not automatically triggered by use of the word “synergy”. “Here, Dr. Newton’s testimony does not appear to be based upon no overlap, but instead appears to argue for CVC rebuttal based upon a synergistic effect between the two hips.”

“The term ‘synergy’ is not a ‘magic word’ that immediately rebuts the use of the CVC. Instead, a physician must set forth a reasoned analysis explaining how and why synergistic ADL overlap exists. If parties are searching for a magic word to use during a doctor’s deposition, that word is “Why?’ “. Rather than focusing on whether a specific term, including the term synergy, was used, it is imperative that parties focus on an analysis that applies critical thinking based on the principles articulated in Escobedo to support a conclusion based on the facts of the case. Such an analysis must include a detailed description of the impact of ADLs and how those ADLs interact.”

After reviewing the record and noting that the qualified medical evaluator failed to discuss the impact of applicant’s impairments upon the ADLs, the Appeals Board reversed the finding of the workers’ compensation judge and returned the matter for further development of the record.

Section III of this decision is not en banc and is not citeable as an en banc opinion.