VIGIL VS. COUNTY OF KERN EN BANC DECISION ADDRESSES 'KITE' RATINGS
GMK ALERT – Today’s News You Can Use
ISSUE DATE: Tuesday, June 18, 2024
IN THIS ALERT: Vigil vs. County of Kern En Banc Decision addresses 'Kite' ratings
On June 10, 2024, the Appeals Board issued an en banc and panel decision in Sammy Vigil v. County of Kern. (ADJ11201607, ADJ11201608). The decision provides further clarification as to when and how the Combined Values Chart (CVC) may be rebutted as well as a non-binding analysis regarding apportionment.
In Vigil, the WCAB held that the CVC in the Schedule for Rating Permanent Disabilities (PDRS) can be rebutted and impairments may be added when the 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 first method of rebuttal requires the applicant to present evidence explaining what impact applicant’s impairments have had upon their ADLs. The second method requires a showing of the synergistic effect of the multiple impairments on the applicant. If two impairments overlap in their effect on ADLs and amplify one another to cause further impairment than would be anticipated in the AMA Guides, it is also permissible to add the impairments rather than combine them.
Additionally, the Appeals Board held that the trial judge erred in not finding any apportionment after applying the Hikida decision when applicant’s hip surgeries were successful and did not cause any increased impairment.
What this means for you:
Overall, the Vigil decision should be looked at as a victory for employers as med-legal evaluators should no longer be allowed to shield their flimsy attempts to rebut the CVC by citing to ‘synergy’. Instead, rebuttal of the CVC will require a critical analysis of the actual impact of the permanent impairment on the applicant’s ADLs and the significance of the overlap between the body parts seeking to be added rather than combined.
- Melissa Dempsey, Esq. - San Luis Obispo, CA
- Jay Shery, Esq. (subrogation) - Woodland Hills, CA
Goldman Magdalin Straatsma, LLP