Kite and Beyond: WCAB Clarifies Analysis Necessary To Rebut Combined Value Charts

The Workers Compensation Appeals Board issued its most recent En Banc and Panel Decision on June 10, 2024 in the matter of Sammy Vigil v County of Kern,?89 Cal. Comp Cases (ADJ11201608), addressing the ever increasing use of Kite??in order to rebut the Combined Values Chart (CVC) when determining final levels of Permanent Disability.

Regarding the use of a Kite?analysis, the court held that the Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either:

• There is no overlap between the effects of ADLs for the body parts rated, or
• There is overlap, but it increases or amplifies the impact on the overlapping ADLs

The holding requires Applicants to focus on overlapping Activities of Daily living, or the absence thereof.? When ADLs overlap, it must be shown that an increase or amplification on those ADLs is present.

The decision also clarifies what constitutes an acceptable Kite analysis, stating that the term “synergy” is not a magic word that immediately rebuts the use of the combined values chart.?Rather, the parties must focus on an analysis of “why” overlapping ADLs should result in the addition of various impairments.

The decision is likely to result in much litigation as Applicants are likely to seek supplemental reporting and/or depositions in order to rebut the use of the CVC chart with a focus on “why.”

Defendants are well served to endeavor to ensure that ADLs are characterized in a way that results in overlap.

Noteworthy is a sentence on page 7 of the decision that reads “Where the medical evidence demonstrates that there is effectively an absence of overlap, the CVC table is rebutted and it need not be used."? This idea certainly conflicts with the court's later holding… and is sure to be a point of contention between parties.