Vigil v. County of Kern
The WCAB issued an en banc decision holding that the CVC in the Schedule for Rating Permanent Disabilities (permanent disability ratings schedule, or PDRS) can be rebutted and impairments may be added when an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either:
- There is no overlap between the effects on ADLs for the body parts rated. Or
- There is overlap, but it increases or amplifies the impact on the overlapping ADLs.
The applicant claimed two industrial injuries to his hips and back. The PQME explained, “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.
The WCAB noted that although the PDRS, which includes the CVC, is prima-facie evidence of the applicant’s level of permanent disability, it is rebuttable.
The Board explained that impairment under the AMA guides is designed to reflect how a disability affects a person’s activities of daily living, and that usually impairments to two or more body parts are expected to have an overlapping effect on the activities of daily living. So, under the AMA guides and the PDRS, the two impairments are combined to eliminate that overlap.
The WCAB explained that the first method for rebuttal of the CVC is to show that the multiple impairments have no overlap on the effects of the ADLs. It stated:
“In determining whether the application of the CVC table has been rebutted in a case, an applicant must present evidence explaining what impact applicant’s impairments have had upon their ADLs. Where the medical evidence demonstrates that the impact upon the ADLs overlaps, without more, an applicant has not rebutted the CVC table. Where the medical evidence demonstrates that there is effectively an absence of overlap, the CVC table is rebutted, and it need not be used.”
The WCAB explained that the second method for rebutting the CVC was discussed first in Kite by showing the synergistic effect of two impairments on the applicant. It stated:
“In some cases, two impairments overlap with one another in their effect on ADLs to the extent that they amplify one another to cause further impairment than what is anticipated in the AMA Guides. Thus, it is permissible to add impairments where a synergistic amplification of ADLs is shown.”
It then stated:
“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.”
In Virgil the WCAB found that the PQME provided little analysis for his conclusion that the applicant would have significantly more limitations after having both hips replaced. There was no discussion of ADLs. The WCAB concluded that there was no substantial evidence to support a finding that the impairments should be added.
