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Kite, AMEs, and the WCAB: The Perfect Storm
The 2017 decision of Kite v. Athens Administrators (2013) 78 CCC 213 (writ denied) has left the legal community scratching its collective head. From the definition of “synergism” to whether “overlap” necessarily rules out compensable consequences, the courts have issued a dizzying array of inconsistent decisions. In this article, we will explore the history of Kite and its progeny, and address what appear to be the critical elements of sustaining — or defeating — a Kite analysis. Finally, we will address holding of the 2018 Fitzgerald case and its likely impact on the Kite line of cases.
Richard Kite was a forklift driver who sustained bilateral hip injuries resulting in bilateral hip replacements. Each hip rated separately at 20% WPI. The QME felt that because the applicant did not have a “good” hip to compensate for an injured hip, it resulted in a “synergistic effect” —a sort of enhanced impairment. He suggested that instead of combining the bilateral hip impairment on the combined values chart, it would be more accurate to add the impairments.
The Judge agreed, noting “It appears logical that a person who is able to compensate through the opposite member for an injury to one limb is to some extent less disabled or impaired than someone who cannot so compensate.” In relying on prior cases finding the multiple disabilities table and rating schedules rebuttable, the WCJ agreed that the combined values chart need not be applied. The WCAB agreed, and in denying the defendant’s Writ, the Court of Appeal opened a can of proverbial worms, allowing the lower courts to apply varying interpretations to the Kite analysis.
The first significant case following Kite was Sweetman v. Bank of America (2014 Cal. Wrk. Comp. PD LEXIS 510). In that case, the QME added the applicant’s low back, left wrist, and sleep impairment because to combine them would be “unfair.” The trial judge ruled that applicant’s low back and left wrist injuries (sustained in a slip and fall accident) did not overlap and thus could be added. The applicant’s sleep disorder, however, arose from her back pain, and thus constituted complete overlap, preventing the Kite addition method. This case is notable because the trial judge seemed to indicate that an injury that arises from another injury (e.g. every compensable consequence injury) by definition overlaps. It is also notable that the judge did not address how the back and wrist, while not overlapping, were synergistic or enhanced the disability. Reconsideration was denied without comment, but that outcome is unlikely today as the WCAB has become more attuned to the nuances of causation vs overlap and the focus on what, exactly, synergism is.
The WCAB seemed to begin to pick up on these issues in Lotspike v. J. Jill (2013 Cal. Wrk. Comp. PD LEXIS 564) when it overturned the WCJ’s Kite addition analysis as not based on substantial medical evidence when the AMEs had not commented on whether addition was appropriate. However, rather than simply holding the applicant had not carried her burden, the WCAB remanded it back for comment from the AMEs. Note the WCAB did not use the argument of the WCJ in Sweetman that it was the doctor’s duty to outline impairment but the judge’s duty to outline disability.
Similarly, the WCAB reversed the WCJ’s Kite analysis in Borela v. State of CA and SCIF (2014 Cal. Wrk. Comp. PD LEXIS 217) on the grounds that the WCJ did not articulate a reason for not combining (e.g. following the rating schedule) other than to assert that use of the CVC was not mandatory. Again they found the opinion was not based on substantial medical evidence, but rather than simply finding the applicant had not carried her burden, again remanded for further discovery.
However, after reversing decisions because the AMEs had not commented on the addition method, the WCAB upheld the addition method where the AME specifically deferred the issue to the trier of fact. In Diaz v. State of California and SCIF (2015 Cal. Wrk. Comp. PD LEXIS 683), the WCAB found the AME’s failure to rule out the addition method meant that the Kite method was “not inappropriate.” The dispute among the commissioners was whether this was a legal dispute or a medical dispute, and ultimately ruled 2-1 that it was a legal dispute. This of course seems in conflict with the prior decisions holding that such opinions had to be based on substantial medical evidence. If the AME deferred the issue, how could it possibly be substantial medical evidence on the issue?
The Diaz case marked the start of a troubling trend of seemingly making an effort to allow Kite analyses. In Armand La Count v. Los Angeles County Metropolitan Transit Authority, PSI (2015 Cal. Wrk. Comp. PD LEXIS 20 (writ denied)), the applicant was originally diagnosed with a single cardiac ailment by the AME. After a Petition to Reopen, the AME diagnosed a second condition that was not new but had been overlooked at the original evaluation. The applicant argued that the new diagnoses produced a new, separate rating that should be added to the original rating.
The AME stated that there was a “negative synergistic effect” such that presence of the second condition predisposed the applicant to a great risk of sudden death than somebody with only one of the conditions. The WCJ allowed the addition method based on the combined effect of the applicant’s medical condition on his future.
There are two significant problems with this case. First is the fact that the WCJ based the Kite analysis on the combine effects on his future (e.g. risk of sudden death) rather than his actual disability at the time of evaluation. The second issue is that the AME deferred the issue of addition based on the defense attorney’s statement that it was a legal issue rather than a medical issue, as was determined in the Sweetman and Diaz cases. The WCAB disagreed but instead of remanding for clarification, relied on the likely impact of the condition on the applicant’s future.
After this case, the WCAB seemed to take stock in their recent decisions, as a new trend emerged. In Leo v. Greenspan Adjusters International (2016 Cal. Wrk. Comp. PD LEXIS 431) the QME added spinal cervical and lumbar impairments because they were separate areas of the spine. The WCJ agreed, but the WCAB reversed, noting that the QME had not explained how the addition method was more accurate than the combination method. Similarly, in Johnson v. Wayman Ranches and SCIF (2016 Cal. Wrk. Comp. PD LEXIS 235) the WCJ rejected the addition method after the psyche QME stated that there was no overlap between psyche and orthopedic conditions and that it had become his policy never to use the combined values chart.
Likewise, in Wong v. National Union Fire Insurance and AIG (2016 Cal. Wrk. Comp. PD LEXIS 604) the WCAB upheld a WCJ who rejected the addition method when there was no substantial medical evidence offered by the applicant to support addition over the CVC method. The trial judge noted “The great weight of case authority holds the Board should rate by combining the separate disability using the CVC unless there is substantial medical evidence that says the disabilities should be added.”
Never one to let the pendulum swing too far to the right, in the next two cases the WCAB took the extreme opposite view. In Martinez v. Pack Fresh Processors (2017 Cal. Wrk. Comp. PD LEXIS 492), the WCJ found 100% despite the fact that neither QME endorsed Kite. The WO instead determined that psyche and upper extremity impairments do not overlap and therefore should be added. Without any substantial evidence supporting why addition is more accurate than combining, it was expected that the WCAB would reverse. Instead, the WCAB took a very disturbing stand in holding that the rating schedule is “only a guide” and that adding the level of permanent disability is proper when that results in a more accurate rating (while not citing any medical evidence pointing to addition as a more accurate method). The WCAB further used the QME’s comments that they could not address areas outside of their expertise (e.g. the orthopedic QME deferred addressing psychiatric impairment) as an indication of endorsing absence of overlap. The commissioners also relied heavily on the applicant’s lack of skills and low academic achievement in finding her not amenable to rehabilitation.
As recently as August 2018 the WCAB continued to suggest the PDRS was a mere guide, which may be discarded when a medical report endorses addition. In Taina v. County of Santa Clara/Valley Medical Center, 2018 Cal. Wrk. Comp. P.D. LEXIS, the WCJ was genuinely undecided how to rule on addition vs. combining, noting that case law has not made it clear what is needed to constitute substantial medical evidence to support addition. The psychiatric AME endorsed adding but the orthopedic AME did not address overlap or addition method. He opted to defer to the psyche AME but in his decision asked the WCAB for guidance. The WCAB elected to let the WCJ’s decision stand without offering further guidance other than deference to AMEs.
Shortly after Taina, the Court of Appeals issued its decision in Department of Corrections and Rehabilitation vs WCAB (Fitzpatrick) (citation). While not directly addressing Kite, the opinion was a stern rebuke of the trend away from relying on substantial medical evidence. In Fitzpatrick, the Court of Appeal rejected the argument that LC 4662(b) allows a finding of total permanent disability “in accordance with the fact.” The Court reminded the parties that LC 4660 is mandatory: the 2005 Schedule shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule. To find otherwise “would return us to the ad hoc decision making that prevailed prior to 2004 with regard to permanent disability findings, which is exactly what the legislature sought to avoid in enacting the amendments. It would allow an administrative law judge to make a subjective determination that may lead to inconsistent and non-uniform permanent disability ratings with respect to the most expensive claims under our workers’ compensation framework…That it is difficult or onerous to obtain a 100% rating under section 4660 or through rebuttal of the scheduled rating does not affect our analysis.” Fitzgerald thus takes a swipe at recent decisions holding the PDRS to be merely a “guide” rather than a mandate. Based on Fitzgerald, we should expect the WCAB to more consistently insist on substantial medical evidence supporting nonscheduled ratings. In relation to Kite, Fitzgerald should be cited liberally to object to any WCJ who argues that there is no overlap in the absence of any medical reports addressing such. It should also be used to remind the WCJ that any assertion of Kite must be accompanied by an explanation of why addition produces a more accurate (not merely more generous) rating.
As a practical matter, attorneys facing Kite challenges should note that most of the decisions are merely nonbinding panel decisions. The makeup of commissioners on the panel appears to be the deciding factor on whether there will be a careful analysis of whether the Kite analysis rests upon substantial medical evidence or if an effort to assert judicial discretion in favor of the applicant will prevail. In addition, the WCAB shows a strong deference to AME opinions, even when less carefully crafted than those of a QME.
The takeaway message from the last few years is that now, more than ever, defense counsel must be prepared to challenge medical experts to support — with specificity — their opinions on Kite and Almaraz/Guzman. How are symptoms differentiated to rule out overlap? Even if there is no overlap, how does the doctor support the synergistic effect? How exactly does impairment of one body part make impairment of another body part worse?
The seasoned attorneys at Mullen and Filippi are always ready to lend a hand to help you exploit the flaws in an unfavorable report.
Written by Sara Angelini, Associate Attorney in our San Jose Office, January 2019.