Tolbert: Most Doctors Don’t Fully Explain Kites | Workers’ Compensation News
Through Kenneth tolbert
Friday September 17th, 2021 | 0
Since the 2013 decision in Athens Administrators v. WCAB (Kite), physicians have found ways to increase total permanent disability by adding disabilities rather than using the Combined Value Table (CVC).
Here at the Bradford & Barthel Rating Department, we often see little explanation or reasoning in physician reports as to why adding rather than combining disabilities more accurately reflects the residual effects of a candidate’s injury. We often see terms like “synergy”, “non-overlap” or “inability to compensate by the opposite end”.
But, as with the Ogilvie, Dahl and Almaraz / Guzman decisions, opinions that offer alternative scoring methods are not automatic. Regulatory scoring methods are presumed to be correct and the physician must provide adequate evidence and reasoning to deviate from the strict use of PDRS 2005.
In the appeal decision of Department of Corrections and Rehabilitation v. WCAB (Fitzpatrick), the appellate judges did not specifically address the addition over the combination, but focused on the need to provide substantial medical evidence and reasoning to deviate from the guides to the ‘American Medical Association. assessment of permanent impairments. The court said section 4660 of the Labor Code is mandatory and that the 2005 PDRS “will constitute prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule”.
The issues that arose with Kite, however, were not specifically referred to a district appeals court or dealt with by the Bench Workers Compensation Appeal Board. Disputes over addition versus combination have not reached a final legal conclusion but continue to be decided on a case-by-case basis.
We note two recent panel decisions in which the addition of PD was not accepted due to a lack of substantial medical evidence.
In Martinez v. State of California, Department of Corrections (2020), an in-house licensed medical assessor felt that the Applicant’s hypertension should be added to his orthopedic impairments simply because they did not overlap. WCAB found no substantial medical evidence in this decision, noting that “otherwise CVC would become irrelevant in all cases involving injuries to multiple parts of the body.”
Likewise, in Torres v. Santa Barbara Community College District (2021) Workers’ Compensation Judge ruled that added bilateral shoulders and combined them with other disabilities.
The applicant filed a request for reconsideration and argued that the judge should have added the PD of all parts of the body, which would make it permanently totally invalid. She argued that all of the disabilities involved have a synergistic effect and should be added rather than combined.
The WCAB disagreed with the claimant, upheld the WCJ’s decision and concluded that the claimant had failed to establish substantial medical evidence for the addition of disabilities in addition to bilateral shoulders.
There are, however, examples where WCAB upheld Kite’s decisions. If the doctor offers a detailed explanation of ‘how and why’ for doing it, the panel may agree that adding rather than combining is the most accurate assessment of the claimant’s level of disability (De La Cerda v. Martin Selko & Co. (2017)).
We often find little validity in physicians’ reasoning involving “synergy”, “non-overlap” or “the inability to compensate by the opposite end”. We agree that overall disability and impairment increases in these types of cases, but this is already reflected in the legal method of using CVC for each separate scoring chain, each end, and any other body system with permanent residues.
The AMA guides deal with combining PD for body parts via the CVC table on page 438, which says: finger) but only the part or value that remains … after the previous degradation … has been applied.
The 2005 Permanent Disability Assessment Scale also states on pages 1 to 5 that it is not always appropriate to combine all parts of the body. The PDRS states: “It is not always appropriate to combine all the standards of impairment resulting from a single injury, as two or more impairments can have a duplicative effect on the function of the injured body part. “
Consideration should also be given to page 4 of the AMA guides, which reads: “The percentages of whole person impairment listed in the guides estimate the impact of the impairment on the individual’s overall ability. perform activities of daily living, excluding work, as shown in Table 1-2.
When arguing that PD for multiple body parts should be added rather than combined, the doctor should offer a detailed discussion of how this changes the overall consideration of activities of daily living. Often, a doctor’s suspicious explanations are best countered by the doctor’s testimony.
For example, when he feels that a candidate’s bilateral carpal tunnel impairments should be added due to the inability to compensate with the opposite end, the physician should be asked:
- What ADL issues would be expected only due to the carpal tunnel in the left wrist?
- On the right wrist?
- How are ADL problems reflected in the bilateral carpal tunnel?
If a doctor’s report does not address these issues and simply mentions “synergy” or “inability to compensate with the opposite end”, then we are of the opinion that Kite is not valid.
In conclusion, the regulatory rating methods are assumed to be correct. The physician must provide substantial medical evidence to deviate from the strict use of the AMA or PDRS 2005 guides. With regard to kite flying, this evidence should reflect general issues of activities of daily living. and explain in detail why adding PD rather than combining PD allows a more accurate assessment.
Kenneth Tolbert is a Disability Assessment Specialist in the Bradford & Barthel Ontario office. This Bradford & Barthel blog entry appears with his permission.