California Labor Code § 4660

Determinative passage · p.6III. Defendant further contends that applicant failed to satisfy the requirements outlined under Vigil for rebuttal of the CVC method of rating with respect to the bilateral knees. (Petition, p. 4.) Pursuant to section 4660.1, the Permanent Disability Rating Schedule (PDRS) is prima facie evidence of an injured employee's permanent disability. (Lab. Code, § 4660; cf. Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262, 1274-1277 [76 Cal.Comp.Cases 624].) The PDRS provides that the ratings for multiple body parts arising out of the same injury are "generally" combined using the CVC, which is appended to the PDRS. (2005 PDRS, at p. 1- 10.)Yet, because it is part of the PDRS, the CVC is rebuttable and a reporting physician is not precluded from utilizing a method other than the CVC to determine an employee's whole person impairment so long as the physician's opinion remains within the four comers of the AMA Guides.

Applicant may rebut CVC by showing ADLs impacted and non-overlapping or amplifying effects.

Determinative passage · p.81. Applicant asserts that he is 100% permanently totally disabled based on the conclusive presumption of section 4662(a) for "loss of both hands or use thereof" or, alternatively, that he has successfully rebutted the PDRS. (Petition, p. 3, lns 49-51; p. 5, lns 134-137.) There are no other challenges to the FA&O. We will first address the claim of PDRS rebuttal. The State Legislature has set the foundation for establishing disability as the Permanent Disability Ratings Schedule (PDRS), which is prima facie evidence of applicant's level of permanent disability. (Lab. Code, § 4660(c), 4660.1(d).) Further, the Legislature has incorporated the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA Guides) into the PDRS for evaluating physical injury or disfigurement. Section 4660.1 states in the relevant part: (a) In determining the percentages of permanent partial or permanent total disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and the employee's age at the time of injury.

The WCAB applied the PDRS and AMA Guides as the basis for disability rating and found no medical basis to rebut them.

Determinative passage · p.9Section 4660 provides that permanent disability is determined by consideration of whole person impairment within the four corners of the AMA Guides, as applied by the Permanent Disability Rating Schedule (PDRS) in light of the medical record and the effect of the injury on the worker's future earning capacity. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565] ["permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity"]; Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607, 614 [83 Cal.Comp.Cases 1680] (Fitzpatrick); Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] (Guzman).)

Applied to assess permanent disability rating and rebuttal of scheduled rating.

Determinative passage · p.5The opinions of orthopedic AME Dr. Renbaum are deficient with respect to rating and apportionment of cervical spine disability. Labor Code section 4660, subsection (b)(1) requires the use of the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides) in assessing the nature of an injury or disfigurement for purposes of determining a percentage of permanent disability. (Lab. Code, § 4660(b)(1).) Chapter 15 of the AMA Guides requires the use of the Range of Motion (ROM) method instead of a Diagnosis-Related Estimate (DRE) in cases involving more than one segment within the same region of the spine. (AMA Guides, § 15.2, pp. 379-381.) Because applicant had a prior surgery to a separate segment of her cervical spine, the ROM method should have been used to assess whole person impairment (WPI) of the cervical spine, unless the physician provided substantial medical evidence demonstrating how and why a more accurate rating required the use of another method set forth in the AMA Guides, as discussed

Applied to assess adequacy of AME's rating method for cervical spine impairment.

Determinative passage · p.5Section 4660 provides that permanent disability is determined by consideration of whole person impairment within the four corners of the AMA Guides, as applied by the Permanent Disability Rating Schedule (PDRS) in light of the medical record and the effect of the injury on the worker's future earning capacity. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565] ["permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity"]; Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607, 614 [83 Cal.Comp.Cases 1680] (Fitzpatrick); Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808 [75 Cal.Comp.Cases 837] (Guzman).)

Applied to assess permanent disability rating

Determinative passage · p.8C. We consider a variety of legal principals in the evaluation of impairment and rebutting the Permanent Disability Rating Schedule (PDRS). The Fitzpatrick case allows a party to rebut the PDRS. (Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd., (Fitzpatrick), (2018) 27 Cal. App. 5th 607, [ 83 Cal.Comp.Cases 1680].) The scheduled rating (or component parts of the rating) may be rebutted based on the specific circumstances of a case. (See Ogilvie v. Workers' Comp. Appeals Bd., 197 Cal.App.4th at pp. 1266§ 1276; Contra Costa County v. Workers' Comp. Appeals Bd. (2015) 240 Cal.App.4th 746, 755§ 761 [193 Cal. Rptr. 3d 7]; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd., 187 Cal. App. 4th 808, 115 Cal. Rptr. 3d 112. Fitzpatrick established that Labor Code section 4660 governs how a finding and award of permanent total disability (PTD) is made "in accordance with the fact" under Labor Code § 4662, subdivision (b).

The WCJ must follow the rating process outlined in section 4660 and cannot ignore the scheduled rating without substantial justification.

Determinative passage · p.7Defendant further contends that applicant failed to rebut the CVC and erroneously applied the addition method for rating impairments. (Petition, p. 22.) Pursuant to section 4660.1, the Permanent Disability Rating Schedule (PDRS) is prima facie evidence of an injured employee's permanent disability. (Lab. Code, § 4660; cf. Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262, 1274-1277 [76 Cal.Comp.Cases 624].) The PDRS provides that the ratings for multiple body parts arising out of the same injury are "generally" combined using the CVC, which is appended to the PDRS. (2005 PDRS, at p. 1-10.)Yet, because it is part of the PDRS, the CVC is rebuttable and a reporting physician is not precluded from utilizing a method other than the CVC to determine an employee's whole person impairment so long as the physician's opinion remains within the four comers of the AMA Guides. (Lab. Code, § 4660; Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808, 818-829 [75 Cal.Comp.Cases 837].)Accordingly, the use of the multiple disabilities table is discretionary depending upon whether it produces a rating that fully compensates an applicant for the effects of his or her injury. (Mihesuah v. Workers' Comp. Appeals Bd. (1976) 55 Cal.App.3d 720, 728 [41 Cal.Comp.Cases 81, 87].)

Applicant must establish impact on ADLs and non-overlapping or amplifying overlap to rebut CVC and use addition method for rating impairments.

Determinative passage · p.4One element of the PDRS is the Combined Values Chart (CVC). The purpose of the CVC is described within the PDRS, which cites to the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (2001) (AMA Guides), which is adopted and incorporated for purposes of rating permanent disability under the 2005 PDRS. (Lab. Code, § 4660, 4660.1; Hoch, Andrea, Schedule for Rating Permanent Disabilities, (2005), p. 1-11; AMA Guides, pp. 9-10.) In sum, impairment under the AMA Guides is designed to reflect how a disability affects a person's activities of daily living ("ADLs") (self-care, communication, physical activity, sensory function, non- specialized hand activities, travel, sex, and sleep). (AMA Guides, pp. 2-9.) CVC "values are derived from the formula A + B(1-A) = combined value of A and B, where A and B are the decimal equivalents of the impairment ratings." (AMA Guides, p. 604.)5

The CVC values are derived from a formula to combine impairments, but may be rebutted where there is no overlap or where overlap amplifies impact on activities of daily living (ADLs).