Adding Versus Combining Ratings: an Update on the Kite Line of Cases and Rebuttal of the Combined Values Chart

• Publication year: 2019
• Author: Kenneth Kingdon, Esq.

Adding Versus Combining Ratings: An Update on the Kite Line of Cases and Rebuttal of the Combined Values Chart

Kenneth Kingdon, Esq.

San Pedro, California

One of the hottest areas of litigation in the last several years has been whether the applicant's multiple permanent disabilities should be combined using the Combined Values Chart (CVC) or simply added. The answer to that question can have a dramatic impact on the applicant's overall recovery and the employer's liability. This article updates the practitioner on the current status of the law and parameters the WCAB is setting.

Background

On page 10 of the the AMA Guides Fifth Edition, the authors note, after discussing several different combination options, that:

[t]he current edition has retained the same combined values chart, since it has become the standard of practice in many jurisdictions. Other approaches, when published in scientific peer-reviewed literature, will be evaluated for future editions.

Although that language does not suggest that the use of the table is optional, and in Section 7 of the 2005 Permanent Disability Rating Schedule (PDRS) all the examples use the CVC to combine impairments, the Appeals Board in Athens Administrators v. WCAB (Kite) (2013) 78 Cal.Comp.Cases (writ denied) cites Labor Code section 4660(c) and Milpitas Unified School Dist. v. WCAB (Guzman) (2010) 187 Cal.App.4th 808 to justify rebutting a conventional Guides rating.

The Guides themselves contain several examples of situations in which multiple impairments are combined with a value greater than if they were added, such as with unilateral versus bilateral vision and hearing loss.

Moreover, Chapter 16, p. 435, of the Guides recognizes the potential synergistic effect of a bilateral injury, noting:

If the total combined whole person impairment does not seem to adequately reflect the actual extent of alteration in the individual's ability to perform activities of daily living, this should be noted.

However, the tables in Chapter 16 do not reflect this possibility.

There is direct source support for adding the impairments. As I stated in my e-book, Using the Guides Fifth as Intended in California Workers Compensation:

[Page 14]

Interviews with the Senior Medical Editor and Principal Chapter Chairs of the AMA Guides Fifth, I interviewed Frank E. Jones, M.D., the chapter chair of the upper extremities chapter of the Guides. He gave an example of an individual with bilateral wrist fusions, each of which rated 13 percent...