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In its Decision After Reconsideration (En Banc), the WCAB rescinded the WCJ’s F&A and returned this matter to the trial level for further proceedings consistent with the opinion in the case of Vigil v County of Kern 2024-EB-03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

The Division of Workers’ Compensation (DWC) has issued a notice of public hearing for regulations concerning the utilization review (UR) procedures under Labor Code section 4610. Additional regulatory changes related to physician reporting and coordination of care requirements are also included.

The proposed rulemaking primarily implements exemptions to prospective UR created under Senate Bill 1160 (for treatment rendered within the first 30 days from the initial date of injury) and Assembly Bill 1124 (for drugs listed as exempt on the drug formulary).

Additionally, the proposal implements the statutory accreditation requirement and DWC’s oversight of UR plans, which includes extensive changes to UR enforcement rules; makes changes to improve or fix issues related to coordination of medical treatment; and would add a physician reporting form, the PR-1, which combines other reports (the Form RFA and the PR-2) to centralize reporting duties of a treating physician.

Implementation of these regulations is anticipated to harmonize regulations with statutory changes from SB 1160 and AB 1124, and fix system inefficiencies with respect to the delivery of medical treatment.

Members of the public may attend the in-person public hearing on Thursday, July 25, 2024, at 11 a.m. at the:

Elihu Harris State Office Building – Auditorium
1515 Clay Street
Oakland, CA 94612

Written public comments can be submitted via US mail, facsimile transmission (FAX) or by email until the end of the day on Thursday, July 25, 2024 to the attention of:

Maureen Gray, Regulations Coordinator
Department of Industrial Relations
P.O. Box 420603
San Francisco, CA 94142
Fax: (510) 286-0687
Email: dwcrules@dir.ca.gov

DWC will consider all public comments. The notice of rulemaking, text of the regulations, and the initial statement of reasons can be found on the DIR website.

Researchers from the Centre of Preventive Neurology have developed a new method for predicting dementia with over 80% accuracy and up to nine years before a diagnosis. The new method provides a more accurate way to predict dementia than memory tests or measurements of brain shrinkage, two commonly used methods for diagnosing dementia.

The team, led by Professor Charles Marshall and published in Nature Mental Health, developed the predictive test by analysing functional MRI (fMRI) scans to detect changes in the brain’s ‘default mode network’ (DMN). The DMN connects regions of the brain to perform specific cognitive functions and is the first neural network to be affected by Alzheimer’s disease.

The researchers used fMRI scans from over 1,100 volunteers from UK Biobank, a large-scale biomedical database and research resource containing genetic and health information from half a million UK participants, to estimate the effective connectivity between ten regions of the brain that constitute the default mode network.

The researchers assigned each patient with a probability of dementia value based on the extent to which their effective connectivity pattern conforms to a pattern that indicates dementia or a control-like pattern.

They compared these predictions to the medical data of each patient, on record with the UK Biobank. The findings showed that the model had accurately predicted onset of dementia up to nine years before an official diagnosis was made, and with greater than 80% accuracy. In the cases where the volunteers had gone on to develop dementia, it was also found that the model could predict within a two-year margin of error exactly how long it would take that diagnosis to be made.

The researchers also examined whether changes to the DMN might be caused by known risk factors for dementia.

Their analysis showed that genetic risk for Alzheimer’s disease was strongly associated with connectivity changes in the DMN, supporting the idea that these changes are specific to Alzheimer’s disease. They also found that social isolation was likely to increase risk of dementia through its effect on connectivity in the DMN.

Charles Marshall, Professor and Honorary Consultant Neurologist, led the research team within the Centre for Preventive Neurology at the Wolfson Institute of Population Health.

He said: “Predicting who is going to get dementia in the future will be vital for developing treatments that can prevent the irreversible loss of brain cells that causes the symptoms of dementia. Although we are getting better at detecting the proteins in the brain that can cause Alzheimer’s disease, many people live for decades with these proteins in their brain without developing symptoms of dementia. We hope that the measure of brain function that we have developed will allow us to be much more precise about whether someone is actually going to develop dementia, and how soon, so that we can identify whether they might benefit from future treatments.”

Samuel Ereira, lead author and Academic Foundation Programme Doctor at the Centre for Preventive Neurology, Wolfson Institute of Population Health, said: “Using these analysis techniques with large datasets we can identify those at high dementia risk, and also learn which environmental risk factors pushed these people into a high-risk zone. Enormous potential exists to apply these methods to different brain networks and populations, to help us better understand the interplays between environment, neurobiology and illness, both in dementia and possibly other neurodegenerative diseases. fMRI is a non-invasive medical imaging tool, and it takes about 6 minutes to collect the necessary data on an MRI scanner, so it could be integrated into existing diagnostic pathways, particularly where MRI is already used.”

Jennifer Reveles filed an Application for Adjudication of her claim of injury while employed by the State of California Sierra Conservation Center.

On May 8, 2023, defendant filed a petition seeking an order compelling applicant to complete, sign and return medical releases, and that should applicant fail to do so, that the Workers’ Compensation Appeals Board (WCAB) suspend applicant’s entitlement to benefits.

On June 29, 2023, the parties proceeded to trial, framing for decision defendant’s May 8, 2023 Petition to Compel, and “whether defendant has to depose Applicant if further information is required [that is] not contained in the medical release.”

A Findings of Fact and Orders (F&O) issued by the Workers’ Compensation Administrative Law Judge on August 1, 2023, which ordered Reveles to list the medical treatment received during the last 10 years to the neck, bilateral upper extremities, and bilateral wrists. The WCJ further ordered that any additional information sought by defendant would need to be obtained by deposition.

The WCJ’s Opinion on Decision notes that the order complies with section 4663(d), and that section 5708 allows depositions to be admitted into evidence as part of proceedings before the WCAB.

Applicant filed a Petition for Removal which was granted, and the the decision of August 1, 2023 was rescinded in the panel decision of Reveles v State of California Sierra Conservation Center – ADJ16783231 (April 2025)

In her Petition for Removal applicant contends that the order to disclose medical treatment is not authorized under Labor Code section 4663(d), and that the WCJ’s order is premised on defendant’s demand for information, which is functionally equivalent to written interrogatories.

Applicant further asserts that scope of the compelled disclosure will require applicant to list medical treatment she has received during the last 10 years, including doctors, medical facilities, addresses, locations, parts of body treated, types of treatment, and the approximate date(s) of treatment.

Applicant cites Lubin v. Berkley East Convalescent Hop. & Mission Ins. Co.3 (1976) 41 Cal.Comp.Cases 283 [1976 Cal. Wrk. Comp. LEXIS 2480], wherein a panel of the Appeals Board noted that “in most cases the specific provisions of the Labor Code and of our rules relating to discovery will provide adequate tools to the practitioner,” and that only “in very rare instances, submission of written interrogatories to an opposing party may be the only practical and feasible way of obtaining adequate discovery.“

Applicant asserts that the record does not support the necessity of interrogatories in lieu of other discovery vehicles available to defendant.

Hardesty v. McCord & Holdren, Inc. (1976) 41 Cal.Comp.Cases 111 Section 4663(d) requires that, “[a]n employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.” (Lab. Code, § 4663(d).) Thus, while the section contemplates disclosure of specified disability or impairment, it does not require the employee to disclose all prior medical treatment.”

The WCAB panel therefore agreed with applicant that the order that she disclose prior medical treatment to specified body parts does not comport with the disclosure required by section 4663(d).

Defendant’s Petition to Compel “fails to explain how compelling applicant’s authorization to disclose an unlimited medical treatment history comports with the requirement for disclosure of disability or impairment pursuant to section 4663(d).”

However, the WCAB Panel went on to say “Irrespective of the requirements of section 4663(d), however, the WCJ retains significant discretion in resolving discovery disputes arising under the provisions of the Labor Code and our rules regarding pre-trial discovery.

In Hardesty v. McCord & Holdren, Inc. (1976) 41 Cal.Comp.Cases 111 [1976 Cal. Wrk. Comp. LEXIS 2406] “we explained that ‘in most cases the specific provisions of the Labor Code and of our rules relating to discovery will provide adequate tools to the practitioner, and that he should not be encouraged to go beyond them in search of other remedies. In those cases where the Labor Code and our rules do not provide a sufficient remedy, ‘the trial judge has, and should exercise[,] the authority conferred on him by § [10330] of our rules to issue such interlocutory orders relating to discovery as he determines are necessary to insure the full and fair adjudication of the matter before him, to expedite litigation and to safeguard against unfair surprise.’ “

“Thus, and insofar as the defendant seeks to compel discovery in the form of written disclosure of prior medical treatment, defendant must establish why the specific provisions of the Labor Code and our rules relating to discovery are otherwise inadequate. Here, defendant offers no argument for the need to resort to written discovery, nor does it aver previously unsuccessful discovery efforts. Because defendant does not assert that less burdensome vehicles for discovery are unavailable to defendant, and because the record reflects no such requests, we are persuaded that defendant’s requests for written disclosures are unduly burdensome.”

Djeneba Sidibe, Jerry Jankowski, Susan Hansen, David Herman, Optimum Graphics, Inc., and Johnson Pool & Spa (“Plaintiffs”) represent a certified class of individuals and businesses in Northern California who paid health insurance premiums to certain health plans run by Aetna, Anthem Blue Cross, Blue Shield of California, Health Net, and United Healthcare.

Plaintiffs are or were insured by health plans that contract with Sutter, a healthcare system that spans 24 hospitals, five medical foundations, and 40 ambulatory surgery centers.

Plaintiffs allege that Sutter charged supracompetitive rates to these health plans, which the health plans in turn passed on to Plaintiffs by charging higher premiums. Plaintiffs are therefore “indirect purchasers” of Sutter’s services, and their “theory of antitrust impact depends on two separate overcharges”: an overcharge by Sutter to the health plans, and an overcharge by the health plans to Plaintiffs.

Aetna Health of California Inc., Aetna Live Insurance Company, Anthem Blue Cross, Blue Shield of California, United Healthcare Services Inc., and Kaiser Foundation Health Plan Inc., are Intervenors in this action.

This litigation was filed in 2012 and has proceeded for over a decade. The lawsuit was certified as a class action in 2020, allowing it to proceed on behalf of millions of Californians with health plans from specific insurers.

The district court initially set a damages period beginning on September 28, 2008. This was four years before Plaintiffs sued in September 2012, reflecting the statute of limitations for all three statutes. Second, the district court granted summary judgment to Sutter on Plaintiffs’ monopolization claims (section 2 of the Sherman Act) and for all claims between 2008 and 2010. Thus, the damages period began on January 1, 2011. Third, the district court granted several of Sutter’s motions in limine to exclude evidence..

The case proceeded to trial in February 2022 at a San Francisco Federal District Court on Plaintiffs’ claims under the Cartwright Act only. Following a four week trial a jury returned a verdict in favor of Sutter. Plaintiffs appealed the entry of final judgment in favor of Sutter.

The 9th Circuit Court of Appeals reversed the district court’s entry of final judgment and remand for a new trial in the published case of Sidibe et. al. v Sutter Health -22-15634 (June 2024)

On appeal Plaintiffs contended that the district court impermissibly excluded relevant evidence, failed to instruct the jury to consider Sutter’s anticompetitive purpose, failed to instruct the jury that the relevant purchasers are the health plans, and wrongly denied Plaintiffs’ motion for sanctions against Sutter for the destruction of evidence.

In the 98 page Opinion, the Court of Appeals first addressed Plaintiffs’ contention that the district court contravened California law when it omitted the word “purpose” from the jury instructions on Plaintiffs’ unreasonable course of conduct claim and that the legal error was not harmless.

The panel held that the district court contravened California law by removing the word “purpose” from the Judicial Council of California Civil Jury Instructions and thus failing to instruct the jury to consider Sutter’s anticompetitive purpose as to the unreasonable course of conduct claim, and that the legal error was not harmless.

Plaintiffs’ second contention is that the district court abused its discretion in excluding pre-2006 evidence and that the error was prejudicial.

The panel held that the district court abused its discretion under Fed. R. Evid. 403 in excluding as minimally relevant all evidence of Sutter’s conduct before 2006, which was five years before the specific contracts that Plaintiffs alleged caused them harm were negotiated and took effect.

The excluded evidence concerned the inception, Sutter’s stated purpose, and effects of the conduct challenged during the trial. The panel held that Sutter failed to rebut the presumption that the error prejudiced Plaintiffs because, among other things, the excluded evidence would have rebutted Sutter’s testimony and arguments at trial.

For the foregoing reasons, the district court erred in failing to instruct the jury to consider Sutter’s anticompetitive purpose and in excluding highly relevant pre-2006 evidence. Accordingly, the Court of Appeals reversed the district court’s entry of final judgment and remand for a new trial.

Dissenting, Judge Bumatay would affirm the jury verdict.