REBUTTING THE CVC – KITE DECISION

In a recent PANEL decision Devereux v. SCIF ADJ10307426, the WCAB panel of commissioners decided that a worker may use the rationale in the Kite decision to rebut the Combined Values Chart [CVC] by adding all the disabilities as opposed to diminishing them pursuant to the CVC.

The CVC is a chart in the permanent disability rating schedule [PDRS] which combines a workers disability using the formula a + b (1-a) where a is the percentage of the workers’ 1st disability and b is the percentage of the workers’ second disability.  For example, if a worker as ha 15% disability in his elbow and a 10% disability in his shoulder; the total disability would be 15 + 10  = 25 (1 – .15) = 25(.85) = 21.  The idea behind the CVC is that there is an overlap between the elbow and the shoulder disability i.e., the injured arm is wear and hurt because of both disabilities – so – in order to avoid an overlap [counting the same thing twice] the CVC lowers the overall disability.

The Kite decision quoted from the AMA Guides [book used to rate disabilities] page ten [10] where the Guides note that sometimes it would be more accurate to add the impairment percentages versus using the CVC.

In the Devereux decision, the WCAB summarized the various cases which allowed adding separate disabilities versus using the CVC: Kite, La Count, Diaz and Sanchez.  In all those cases the doctor evaluating the worker’s disabilioty determined that there was no overlap and; therefore, the separate disabilities should be added.

A worker and/or his attorney must look at each MMI report and determine if there is overlap justifying the use of the CVC.  If the worker is suffering from a knee injury and also a neck injury, there is probably not much by way of overlapping disabilities – the neck mainly deals with the upper extremities while the knee is obviously used for a separate set of functions.

In the example above the 25% disability obtained by addition equals $29,217.50 whereas the 21% disability using the CVC equates to $23,345.00.  Every letter to an evaluating doctor should ask the doctor whether there is overlap between the impairments and whether a more accurate rating can be obtained by adding the impairments versus using the CVC!

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