ADJ11201608 · June 10, 2024

The en banc decision holds that the Combined Values Chart (CVC) may be rebutted and impairments added if the applicant establishes the impact of each impairment on activities of daily living (ADLs) and shows either no overlap or an amplifying overlap of ADLs. The WCJ's prior finding to add impairments was not supported by substantial medical evidence because the QME did not analyze ADLs. The Hikida case was misapplied as the applicant's hip surgeries were successful. Defendant failed to prove apportionment due to lack of substantial evidence from the QME.

From the decision · page 2Defendant seeks reconsideration of the "Rulings on Evidence, Findings of Fact, Awards and Orders" (F&A) issued on April 20, 2020, and the subsequent amendment to the F&A in the "Order Amending Findings of Fact, Awards and Orders; Opinion on Decision" (Order) issued on May 5, 2020, by the workers' compensation administrative law judge (WCJ).4 The WCJ found, in pertinent part, that applicant sustained 68% permanent partial disability by adding the impairment to applicant's left and right hip pursuant to East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.

QME did not provide detailed analysis of activities of daily living (ADLs) impact for bilateral hip impairments.

Favours Defendant prevailed

Without detailed ADL analysis, the finding to add impairments was not based on substantial medical evidence.

From the decision · page 8overlapping ADLs.7 Here, Dr. Newton concluded that applicant would have significantly more limitations after having both hips replaced, but he provided little analysis in support of this conclusion. Dr. Newton should have reviewed the impacts upon the ADLs in each individual hip, and then explained why the disability in the two hips combined in a way to increase the impact on overall ADLs. Yet, Dr. Newton's reporting and the present record contain no discussion of ADLs. Accordingly, the finding that the impairments should be added is not based on substantial medical evidence.

Defendant failed to meet burden of proof on apportionment due to lack of substantial medical evidence explaining non-industrial factors causing hip replacements.

Favours Applicant prevailed

Without adequate explanation, apportionment cannot be upheld.

From the decision · page 14Here the apportionment opinion of Dr. Newton does not constitute substantial medical evidence as it is conclusory without adequate explanation for what non-industrial factors caused the need for applicant's hip replacements. Without a proper explanation of how and why, defendant has failed to meet its burden of proof on the issue of apportionment. (See Escobedo, supra.)

Concluded applicant would have significantly more limitations after bilateral hip replacements but provided little analysis on activities of daily living (ADLs) impact; apportionment opinion was conclusory without adequate explanation of non-industrial factors causing hip replacements.

QME opinion lacked detailed ADL analysis and adequate explanation for apportionment, thus not substantial evidence to support WCJ's findings.

From the decision · page 3I. FACTS Applicant worked for defendant as a maintenance painter, and he claimed injury to his hips and back on December 7, 2017 (ADJ11201608), and during the cumulative period ending on February 7, 2018 (ADJ11201607). (Minutes of Hearing and Summary of Evidence, February 7, 2020, p. 2, lines 39-43.) Following trial, applicant's cumulative injury was found to be industrial, and the WCJ calculated applicant's permanent disability by adding the impairment to the left and right hips, and then combining it with the impairment to the lumbar spine. (F&A, p. 3.) The WCJ did not apply 15% non-industrial apportionment to the hips based upon Hikida because the WCJ opined that the disability was a result of applicant's surgical hip replacement. (Id. at p. 2.) Thus, the issue on reconsideration is the calculation of permanent disability, including the application of the Kite analysis to the hips, and whether apportionment was properly excluded. Applicant was evaluated by QME Peter Newton, M.D., who authored four reports in evidence and was deposed. (Applicant's Exhibits 1 through 5.) Dr. Newton took a history of applicant undergoing bilateral hip replacement surgeries and noted the following complaints: LUMBAR SPINE:

East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213

Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments added where applicant establishes impact on activities of daily living (ADLs) and either no overlap or amplifying overlap of ADLs.

Applied to hold that impairments may be added if ADL impact is shown and overlap conditions met.

From the decision · page 2Defendant seeks reconsideration of the "Rulings on Evidence, Findings of Fact, Awards and Orders" (F&A) issued on April 20, 2020, and the subsequent amendment to the F&A in the "Order Amending Findings of Fact, Awards and Orders; Opinion on Decision" (Order) issued on May 5, 2020, by the workers' compensation administrative law judge (WCJ).4 The WCJ found, in pertinent part, that applicant sustained 68% permanent partial disability by adding the impairment to applicant's left and right hip pursuant to East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.

Labor Code Section 4663(c)

Apportionment must be made by physician to reasonable medical probability considering all factors before and after industrial injury, including prior injuries and nonindustrial factors.

Requires physician to make apportionment determination with reasoning; failure to do so means no substantial evidence for apportionment.

From the decision · page 11(c) In order for a physician's report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.

Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249

Hikida precludes apportionment for new disabling conditions resulting from industrial surgery, but does not apply where surgery was successful and did not cause increased impairment.

Misapplication of Hikida by WCJ reversed; successful hip replacement surgery does not preclude apportionment.

From the decision · page 2Defendant seeks reconsideration of the "Rulings on Evidence, Findings of Fact, Awards and Orders" (F&A) issued on April 20, 2020, and the subsequent amendment to the F&A in the "Order Amending Findings of Fact, Awards and Orders; Opinion on Decision" (Order) issued on May 5, 2020, by the workers' compensation administrative law judge (WCJ).4 The WCJ found, in pertinent part, that applicant sustained 68% permanent partial disability by adding the impairment to applicant's left and right hip pursuant to East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.). The WCJ further found that apportionment to the hips was not permissible pursuant to Hikida v. Workers' Comp. Appeals Bd. (2017) 12 Cal.App.5th 1249 [82 Cal.Comp.Cases 679] because the disability was caused by hip replacement surgery.

QME's opinion lacked detailed analysis of activities of daily living (ADLs) impact for bilateral hip impairments

From the decision · page 8overlapping ADLs.7 Here, Dr. Newton concluded that applicant would have significantly more limitations after having both hips replaced, but he provided little analysis in support of this conclusion. Dr. Newton should have reviewed the impacts upon the ADLs in each individual hip, and then explained why the disability in the two hips combined in a way to increase the impact on overall ADLs. Yet, Dr. Newton's reporting and the present record contain no discussion of ADLs. Accordingly, the finding that the impairments should be added is not based on substantial medical evidence.

Defendant failed to prove apportionment due to lack of substantial medical evidence explaining non-industrial factors

From the decision · page 14Here the apportionment opinion of Dr. Newton does not constitute substantial medical evidence as it is conclusory without adequate explanation for what non-industrial factors caused the need for applicant's hip replacements. Without a proper explanation of how and why, defendant has failed to meet its burden of proof on the issue of apportionment. (See Escobedo, supra.)