Groneberg 1

Worker’s Compensation Article -

Combining versus Adding in Determination of Impairment and Permanent Disability

1) Introduction to Workers’ Compensation

In the field of worker’s compensation law, there has been controversy over how to
quantify impairments caused by injuries. Specifically, if a person sustains injury to multiple parts
of the body, how should the respective ratings be compiled to make a single permanent disability
rating? Some people favor the adding method, in which ratings are simply added together to
make a sum total. Others prefer the combining method, in which ratings are formulaically
combined to produce a total that is always less than 100 percent, and less than the additive sum.
The combining method is the more standardized and “by the book” approach. For those new to
worker’s compensation law as it pertains to permanent disability, here is a brief introduction.
According to California law, an employee must be compensated for any injuries arising
out of work. The employer compensates the injured worker with money according to the
proportion of impairment on a whole-person scale. The higher the percentage, the more
compensation must be paid by the employer for the person’s injuries. For permanent disabilities,
Labor Codes §4658 and §4659 establish the indemnity paid over a certain number of weeks, and
also a life pension for qualifying individuals. In order to correlate the severity of impairment and
the amount of compensation due, standards have been established for rating these impairments.
For example, a person who loses a leg at work may obtain a permanent disability rating of 39
percent, and a person who loses sight in both eyes would obtain a rating of 100 percent and be
considered permanently and totally disabled (PTD). This percentage is supposed to account for
the person’s lost work capacity and ability to perform the activities of daily living, such as
communication, hygiene, and movement (AMA Guides, page 4). There are different methods
used to compile the percentages of multiple disabilities together. The combining method is one
approach that keeps permanent disability (PD) from exceeding 100 percent. This method fits the
logic that a person cannot be more than totally disabled. However, attorneys representing injured
workers often prefer the method that will maximize the benefits awarded to their clients. They
tend to favor the adding method.
For the sake of consistency, it is important that physicians have common methodology
and criteria for rating impairments. For this reason, the California Legislature, in Labor Codes
§4660 and §4660.1, has mandated use of a guidebook from the American Medical Association
known as the AMA Guides. This handbook divides the human body into regions, extremities,
and parts with tables assigning percentage ranges to any specified impairments. A chosen
professional inspects the injured worker using these guidelines and obtains the percentage ratings
relevant to the patient’s impaired condition. After the evaluation, the physician submits whole
person impairment ratings (WPI) that correspond to each impairment. In order to reflect the
person’s diminished market value or work ability, each WPI is then multiplied by 1.4 before any
subsequent modifications, in accordance with §4660.1(b). The intent of this provision is that the
resulting compensation makes up for future wages not earned as a result of injury. The WPI
percentage is then adjusted according to the occupation and the age of the injured worker. A
person will get a larger award if his condition is especially detrimental to his work. The ratings
also vary with age: in California, ratings are boosted higher for older persons and lowered for
younger persons. Labor Code §4660.1(a) reads,
 Groneberg 2

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 his or her age at the time of injury.
The procedures explained above are designed to make reimbursement as fair as possible,
regardless of whether adding or combining is used. By the time all considerations have been
factored in, the resulting computation is no longer called whole person impairment, but instead
permanent disability. Permanent disability takes into account the capacity for future work and is
more inflated than whole person impairment, mostly due to the 1.4 multiplier. Generally, the
issue of combining versus adding arises in the context of permanent disability. It should not
come into play until the agreed medical examiner has determined whole person impairment
ratings for each impairment. The rater takes the findings of the physician—the whole-person
ratings for each impairment—and converts each WPI into permanent disability.
Again, the issue of combining versus adding has its focus in permanent disability ratings,
not always WPI. Although the physician does come up with a single combined WPI and may
comment on the methods used, it is more out of the physician’s reach because the figures have
not been modified yet. There is a theoretical distinction between whole person impairment (WPI)
and permanent disability (PD). A person having 100% WPI would be unable to perform any
activities of daily living and be possibly dead, while a person having 0% WPI would be perfectly
normal and functioning. In contrast, a person with 100% PD may still be alive and able to
perform some tasks, but has lost all work capacity as far as the law is concerned. Although the
numbers may seem abstract, lawyers should uphold them in order to make sense of ratings.
According to §4660.1(e), there must be “consistency, uniformity, and objectivity” in the Rating
Schedule, the system of determining PD.

2) The Need for the AMA Guides and the Permanent Disability Rating Schedule
Naturally, when it comes to evaluating someone’s health or medical condition, there will
be subjective issues and opinions involved. California’s Legislature attempted to answer this
problem by establishing the AMA Guides as the legal and medical standard. The AMA states on
page 1, “The Guides was first published in book form in 1971 in response to a public need for a
standardized, objective approach to evaluating medical impairments.” The Guides is a primary
reference tool in permanent disability cases and a framework that prevents arbitrary ratings.
However, this handbook is not the only authority, as it is limited to the finding of whole person
impairment, not addressing permanent disability. California Labor Code §4660.1(b), which
mentions the AMA Guides, reads as follows:
For purposes of this section, the "nature of the physical injury or disfigurement"
shall incorporate the descriptions and measurements of physical impairments and
the corresponding percentages of impairments published in the American Medical
Association (AMA) Guides to the Evaluation of Permanent Impairment (5th
Edition) with the employee's whole person impairment, as provided in the Guides,
multiplied by an adjustment factor of 1.4.
Here the law consigns the Guides to a specific purpose: the listing of descriptions, numbers, and
measurements which must be followed. However, the AMA handbook offers information of a
general nature—not always the exact percentage ratings, but rather ranges in which the final
percentage must fall. Using expertise and the information from evaluations, the designated
physician selects numbers from these ranges and makes a finding of whole person impairment.
 Groneberg 3

The standard process of finding WPI gives place to opinion, but at the same time directs the
physician toward objectivity.
In providing information thus far, the AMA leaves the creation of schedules and tables
containing the final percentages within the discretion of the several states. Labor Code
§4660.1(d) reads,
The administrative director may formulate a schedule of age and occupational
modifiers and may amend the schedule for the determination of the age and
occupational modifiers in accordance with this section. The Schedule for Rating
Permanent Disabilities pursuant to the American Medical Association (AMA)
Guides to the Evaluation of Permanent Impairment (5th Edition) and the schedule
of age and occupational modifiers shall be available for public inspection and,
without formal introduction in evidence, shall be prima facie evidence of the
percentage of permanent disability to be attributed to each injury covered by the
schedule.
The Permanent Disability Rating Schedule (PDRS) is a public document that straightforwardly
aligns rating numbers in charts for age and occupation adjustment. Administrative Director
Andrea Hoch established the current PDRS for California during the governorship of Arnold
Schwarzenegger. This document addresses how impairments should be modified and compiled,
and toward the end it features a Combined Values Chart, just as the AMA Guides does. The
Combined Values Chart (CVC) is a table that allows the user to combine ratings quickly without
having to use the formula by hand; instead one just finds the intersection of two impairments on
the table. In every court case, the Disability Evaluation Unit is the party entrusted with applying
the PDRS, which contains the CVC. The person filling this role adjusts WPI for diminished
earning capacity (a 1.4 multiplier for injuries after 2012), the occupation category, and the
worker’s age, and finally combines the component ratings.

3) The CVC is a Rational and Legally Reasonable Approach to Combining Ratings.

Once there is a basic familiarity with permanent disability, there can be an informed
discussion about adding versus combining. To add impairment ratings, one simply finds the sum
total of the percentages—here are some examples: 50% + 30% = 80%, or 60% + 50% = 110%.
In the second example, the sum 110% is greater than 100%. This is a problem because the 100
percent scale represents the person’s whole body; so any percentage greater than 100 percent
would be more than the whole person. A person with a WPI of 110% would have more than one
body that is impaired.
The California Labor Code requires that percentages be used (§4658, §4659, §4660,
§4660.1, §4663, and §4751). In contemporary English, the word “percentage” refers to a
proportion of 1, measured in hundredths as units. The online etymological dictionary also
denotes the word “percent” as follows:
1560s, per cent, from Modern Latin per centum "by the hundred" (see per and see
hundred). Until early 20c. often treated as an abbreviation and punctuated accordingly.
(http://www.etymonline.com/index.php?l=p&p=19&allowed_in_frame=0)
Whenever percentages are used, the numbers are established in relation to a whole equating to
100—hence the root, “cent.” Clearly, the Legislature intended a system in which impairment is
rated on a whole-person basis; Labor Code §4660.1(b) indicates that the whole person is that
basis. For this reason, a PD rating of 100 percent would mean that the whole person is disabled
 Groneberg 4

and has lost all work ability as far as the law is concerned. Likewise, a person with 0%
permanent disability retains all work capacity and ability in general. In keeping with this logic,
evaluators must employ a method that keeps WPI and PD within the range of 0% to 100%. If
adding enters the mainstream and all ratings are added, the approach will not honor these
boundaries accurately. In many cases impairments would go beyond 100% and need to be
arbitrarily capped. This is not an accurate picture of disability.
The combined-values formula is a+b(1-a). In this formula, a represents one disability
percentage, and b represents another disability percentage being combined with a. The
combination of these two ratings results in an even greater rating that still falls short of 100%.
For example, a shoulder impairment equating to 24% permanent disability and a hand
impairment equating to 11% PD combine as follows:
0.24 + 0.11(1 - 0.24)
= 0.24 + 0.11(0.76)
= 0.24 + 0.0836
=0.3236 or 32% PD (Always round to the nearest percent.)
The PDRS gives more examples that demonstrate combining. This method is also called
compression or a reduction formula because the ultimate rating is usually smaller than the
additive sum. However, for combined values of 14% or lower, the combined value will “round
up” to the nearest percent and will be the same as the additive sum. At first glance, the formula
may seem arbitrary. However, an analysis will reveal the intent of the formula and how the
formula properly illustrates the principles at work. The purpose of combining is explained in the
AMA Guides, in the preface of the first edition (page iv):
A Combined Values Chart is provided by which any combination of impairments
may be easily assessed. The method generally used to combine various
impairments is based on the principle that each impairment acts not on the whole
part but on the portion which remains after the preceding impairment has acted.
If a shoulder injury causes a permanent disability of 24% to the whole person, then the person
still retains 76% of his work abilities, the unimpaired portion left over. Initially, this worker had
100% of his whole person but then lost 24% of that whole person—so now he is 76% of the
person he used to be. He also has a hand impairment causing 11% permanent disability.
However, this is not 11 percent of the whole person but 11% of the remaining person that is left
nondisabled from the shoulder impairment. 11 hundredths of the remaining person (0.11 x 0.76)
is approximately 8% when translated into the whole-person scale. The numbers are then put
together (24 + 8) and yield a PD rating of 32% as calculated on the previous page. The more
disabilities there are to consider, the more they will shrink before totaling 100%—just as the
hand impairment went down from 11% to 8%.
The federal government also follows this same logic. The Veterans Administration,
which takes care of injured veterans, employs combined-values principles in the combination of
multiple disabilities. In theory, a veteran begins with an efficiency rating of 100%. The product
of the efficiency rating and the first disability rating is deducted from this 100%, resulting in a
new smaller baseline efficiency less than 100%. Then, the second disability is multiplied against
remaining efficiency, and then deducted from the smaller efficiency as a percentage thereof. The
more disabilities, the harder it is to lower the efficiency rating. Just as permanent disability
cannot exceed 100%, an efficiency rating cannot go below 0%. This is a logical depiction of how
impairments work. If a person has numerous impairments and is close to 100% PD, realistically
he cannot become further disabled to the same degree as before. If the combined-values method
 Groneberg 5

is compressive as some say, then the adding method should be considered inflationary because it
goes above and beyond the whole-person effects of disabilities, sometimes past the whole person
limit.

4) The Theory of Adding Does Not Sensibly Describe Impairment or Disability and
Does Not Capture the Diminishing Marginal Effect on Ability.

To someone just learning about workers’ compensation, it may seem unfair to use a
compression formula that reduces the added value of someone’s ratings. Would an impairment
truly have a lesser impact on a person already impaired than on a person who is whole? The
second impairment may not have a diminished impact on the person’s body; however, the
person’s body is not the correct scale of impairment or disability. WPI and PD are measures of
ability—activities of daily living (ADL’s) and work capacity, respectively. An impaired person
has a limited number of ADL’s that can be lost. Therefore, an additional impairment is less likely
to have the same impact since it can only touch the remaining activities of daily living that are
left over. While pain and bodily damage may have increased additively, the practical effect on
ability is not captured by addition. The rate at which each impairment brings a person closer to
death becomes smaller and smaller, the more impairments there are.
There must be a method that systematically keeps ratings below 100%, the figure
representing death, total dependency, or complete inability to work. The AMA Guides says on
page 5:
A 90% to 100% WP impairment indicates a very severe organ or body system
impairment requiring the individual to be fully dependent on others for self-care,
approaching death.
The combining method is satisfactory in applying this notion. However, physicians and applicant
attorneys have also found a way to add without going beyond 100%. They would simply keep
adding whole-person impairments and stop when the number reaches 100. A suitable illustration
of this logic is the analogy of water filling a cup. Each impairment is a quantity of water being
added and poured into a cup. The fact that the cup has limited holding capacity does not diminish
the amount of the water being poured. These quantities add up until water reaches the brim
(100% whole person impairment). And so, adding would take place until the person reaches
100%, and spilled water is irrelevant because it is not in the cup. Thus, the process of adding still
results in a maximum of 100%.
This analogy does not accurately describe the nature of impairment or disability. First of
all, the cup is a misleading image of the whole person. If a person has multiple impairments
totaling over 100%, then the excess impairments are still impairments and would have an effect
on the person. They would not spill over outside the person. Secondly, one cannot account for
water that has spilled over the cup. All of a sudden, impairments no longer have value once
100% has been reached. Rather, those excess impairments become essentially 0% because they
do not add onto the rating. This is the most egregious form of “compression.” Hence, the adding
method may seem intuitive, but it is not accurate in capturing the effect of every impairment. It
does not fit the reality of a whole person being impaired and losing ability. Therefore, the adding
method should not enter the mainstream as it would not be accurate as a consistent legal
standard.
 Groneberg 6

5) The Theory of Combining is Intuitive by Analogy, Rationally Accounts for Loss of

Ability, and Consistently Keeps Ratings below 100%.

In helping to understand the combining method, the analogy of a recycle bin works.
Papers are thrown into the recycle bin, and the bin fills up quickly at first. As the bin fills up,
people need to compress the trash more and more and “crumple up” new papers before throwing
them in. This is necessary because the bin is almost full, and papers must be compressed and
stuffed in so as not to overflow the recycle bin. The impairment rating is represented by the
volume of trash taking up space in the recycle bin—not the weight. A paper having the same
weight will take up less volume because it is crumpled up. In the same way, there is a distinction
between the amount of bodily damage and impact on activities of daily living; the WPI rating
represents the latter (volume). At first, impairments will quickly boost a person’s WPI. But if a
person has many impairments, the impact of an additional impairment on the ADL’s will be
smaller because the person has fewer ADL’s (less volume) to lose. The impact of these
impairments will be squished, just like the paper.
Another analogy is age. When a baby turns 2 years old, its age in years has just increased
by 100%. The physical change since the last birthday is drastic. However, from ages 20 to 21 the
difference is only 5% year-wise. In each case, a year has passed, and yet the change becomes
smaller and smaller for those who are older. The difference in numerical age becomes more
negligible, and also the person changes less and less with age. This is also how impairments
work. For someone who is highly disabled, an additional disabling impairment is not likely to
have the same life-changing impact as for someone who has no disability. That is why the
percentage value of the next rating seems to shrink. The impairment itself is not becoming
smaller or less disfiguring, but rather the impact on ability is reduced relative to the first
impairments.
Here is an analogy from the world of economics—the law of diminishing marginal
returns. In any business, the manager wants to hire employees to perform tasks for the business.
The first employees will be extremely valuable as they will cover the more basic functions of the
business. The next employees will add value, but not as crucial; maybe they will provide extra
hands to perform those functions faster. As the crew increases, options will be more limited. The
20th employee may have to be a sign-twirler or a sweeper. And so, the value of each additional
employee decreases, even though the number of employees increases additively. Moreover, there
is an obvious limit on the building’s physical dimensions and how much the boss can pay
employees. There are also limits in workers’ compensation: an injured employee receiving
benefits cannot be dead or more than 100% disabled. There are only so many activities of daily
living to take away; therefore additional impairments have a reduced value. Whenever limits are
involved, there is never a linear effect of each unit. New employees will have less and less to do,
and new impairments will have less and less to disable. Each impairment listed in the Schedule
has a constant, unchanging value. However, the process of combining applies those values to
reality and their effect on ability. The adding method does not account for the diminishing effect
on ability.

6) Combining is Consistent with the 100% Cap of Labor Code §4664.

 Groneberg 7

One interesting statute in workers’ compensation law is §4664. This is an apportionment

statute governing the liability of employers and setting up restrictions for permanent disability
ratings. The text of the code provides in pertinent part:
The accumulation of all permanent disability awards issued with respect to any
one region of the body in favor of one individual employee shall not exceed 100
percent over the employee’s lifetime unless the employee’s injury or illness is
conclusively presumed to be total in character pursuant to Section 4662.
Here the law sets a 100% cap on the total of permanent disability sustained in one region over
the person’s lifetime (unless the person becomes PTD). Clearly, the figure of 100 percent is to be
regarded as a maximal number representing totality—not to be exceeded. Unchecked use of the
adding method would frequently produce ratings higher than 100%, a result that the Legislature
wanted to avoid. The above rule makes perfect sense in light of the preceding subdivision:
If the applicant has received a prior award of permanent disability, it shall be
conclusively presumed that the prior permanent disability exists at the time of any
subsequent industrial injury. This presumption is a presumption affecting the
burden of proof.
The rationale of this statue conforms to the logic of combining. According to this theory, a
subsequent impairment or disability affects the unaffected portion of the person remaining and
cannot bring him to a status of more than 100% disabled. The statute adopts this realistic view by
considering past injuries which have already disabled the person to some extent. Because of the
100% cap, the effect of subsequent injuries in the same region shrinks. The statute continues,
Nothing in this section shall be construed to permit the permanent disability rating
for each individual injury sustained by an employee arising from the same
industrial accident, when added together, from exceeding 100 percent.
Again the statute reinforces the idea of 100% totality. Disabilities sustained in the same region
have this cap, and disabilities resulting from the same work-related accident also have the cap.
Although the labor code uses the words “added together” toward the end, it is not
suggesting use of the basic addition function. To add does not necessarily mean to find the
mathematical sum. Dictionary.com defines the word “add”: “to unite or join so as to increase the
number, quantity, size, or importance.” This word and its definition do not speak to any
particular method of compiling disabilities; it is generic and does not exclude use of a combining
formula. In context, adding here is akin to the word “accumulation” used in subdivision (c)(1).
Given all the restrictions made by §4664, the most correct approach is the method that keeps
ratings under 100%. Section 4664 demonstrates that the combined-values method has a strong
legal foundation.

7) CVC Ratings Have the Weight of Prima Facie Evidence.

Reliance on the combined-values formula has a strong basis in the law. Labor Code
§4660.1(d) makes the Schedule “prima facie evidence of the percentage of permanent disability
to be attributed to each injury covered by the schedule.” It is interesting that the State chose the
word “injury” here and not “impairment,” for the Schedule does not technically cover a list of
injuries, but a list of coded impairments. These two terms have distinct meanings. The PDRS
reads on page 1-5:
A single injury can result in multiple impairments of several parts of the body.
For example, an injury to the arm could result in limited elbow range of motion
 Groneberg 8

and shoulder instability. Multiple impairments must be combined in a prescribed

manner to produce a final overall rating.
In §4660.1(d), it is unclear whether the word “injury” loosely refers to individual, coded
impairments listed in the Schedule, or whether it was intended to mean one injury encompassing
multiple combined impairments, altogether considered by the Schedule. This is important to a
discussion about combining and adding for several reasons. If the Legislature was using the strict
definition, consistent with workers’ compensation vocabulary, then the percentage rating is
prima facie evidence after the combining method has been used to combine impairments of a
single injury. However, if the word “injury” here refers to uncombined impairments listed in
Section 2 of the Schedule, then the CVC is not part of the prima facie evidence because
combining has not taken place yet.
Prima facie evidence is evidence that is accepted at first look. California Evidence Code
§602 provides the legal definition of prima facie evidence and how it is to be treated:
You are instructed that you must assume the existence of [presumed fact] until
you are persuaded to the contrary by [requisite degree of proof].
Prima facie evidence is considered accurate unless it is proven otherwise and rebutted. And so,
the parties to a case must accept ratings from the PDRS until they are rebutted. The PDRS gives
clear directions to use the Combined Values Chart in combining multiple disabilities. Section 8
of the PDRS, entitled “Combined Values Chart,” instructs the rater, “Use this chart to combine
two or more impairments, or two or more disabilities.” The rater, when combining impairments
according to the PDRS, must refer to the CVC. It is the primary methodology for use when the
rater is instructed to combine impairments. Again, on page 1-10, it reads, “Impairments and
disabilities are generally combined using the following formula where ‘a’ and ‘b’ are the decimal
equivalents of the impairment or disability percentages: a + b(1-a).” Here the Schedule upholds
the same combined-values formula that the AMA Guides does. In that the Administrative
Director states that the CVC should be “generally” used, there is clear intent that the CVC should
be the default tool for combining disabilities.

8) The Combined Values Chart Is Part of the Schedule under the Guzman Holding and
in Accordance with the California Code of Regulations; Therefore, It Is Prima Facie
Evidence.

Some argue that the Combined Values Chart is not really part of the Rating Schedule and
that it is not presumably accurate. This may be true of the Multiple Disabilities Table, but not the
CVC. This argument would contradict a multitude of cases which establish that the CVC is the
norm and a rebuttable presumption.
In the Foxworthy case, even the dissent acknowledged that the CVC is part of the current
Schedule:
The 2005 PDRS, of which the CVC is a component, is rebuttable.
In the Guzman case, the Court of Appeal said,
As so directed, the administrative director published a new PDRS effective
January 1, 2005, which incorporated the fifth edition of the Guides in its entirety.
Because the Combined Values Chart is contained in the AMA Guides on page 604, it is
incorporated into the Rating Schedule as part of the AMA Guides. Not only that, but the
Schedule itself contains a Combined Values Chart. Moreover, 8 CCR 9805 endorses the
complete PDRS as if it were set forth in law. Any debate about whether the CVC is prima facie
 Groneberg 9

according to §4660.1(d), or whether the CVC is technically a part of the Schedule, is therefore
moot; the CVC is literally within the pages of both the PDRS and the Guides which have specific
instructions to use the chart in ordinary circumstances. This is enough because the PDRS (and
therefore the Guides) has been “incorporated by reference in its entirety as though it were set
forth below” in the California Code of Regulations.
9) The Legislature’s Aim of Consistency, Uniformity, and Objectivity is Not Limited to
Age and Occupational Modifiers.
Labor Code §4660.1 (just discussed) was added in 2012 as a part of Senate Bill No. 863.
Section 4660 is now the applicable section for pre-2013 injuries, and Section 4660.1 is the
section applicable to all injuries going forward. The text of §4660(d) reads in pertinent part:
The schedule shall promote consistency, uniformity, and objectivity.
However, the corresponding text of the new §4660.1(e) reads a little differently:
The schedule of age and occupational modifiers shall promote consistency,
uniformity, and objectivity.
The Legislature updated the requirement to include the phrase “of age and occupational
modifiers.” As a result, a possible argument to manipulate ratings is that only the age and
occupational modifiers must be consistent, and so the rest of the Schedule is flexible on the issue
of ratings. Therefore, judges and rating specialists may choose willy-nilly to add disabilities and
not to combine them via the Combined Values Chart of the Schedule. Applicants would be able
to use any method—multiplication, exponents, factorials, etc.—to combine disabilities because
“consistency” only applies to the age and occupational modifiers. Such a contention does not
comply with legislative intent.
In enacting this bill, the Legislature sought to effect consistency, uniformity, and
objectivity in workers’ compensation cases. Specifically, this goal pertains to the determination
of permanent disability. The Legislature declared
That the current system of determining permanent disability has become
excessively litigious, time consuming, procedurally burdensome and
unpredictable, and that the provisions of this act will produce the necessary
uniformity, consistency, and objectivity of outcomes, in accordance with the
constitutional mandate to accomplish substantial justice in all cases expeditiously,
inexpensively, and without encumbrance of any character . . .
As seen here, the goal of consistency is obviously not limited to the schedule of age and
occupational modifiers. Rather, this goal encompasses a quite larger scheme, including the
determination of permanent disability and the objectives of the California state constitution. The
Legislature used different language for §4660(d) and §4660.1(e) to reflect the use of a new 1.4
multiplier. Before 2013, adjustments were scheduled according to diminished future earning
capacity (DFEC), age, and occupation. DFEC was a number that varied from 1.1 to 1.4
according to the ranking of the particular impairment. Today, DFEC is always a 1.4 multiplier.
Presumably, DFEC was simplified in order to meet the goals of the State in making the process
less “procedurally burdensome.”

10) The AMA Guides, the PDRS, and the CVC Must Be Defended in Order to Comply
with the Legislature’s Aim of Uniformity, Consistency, and Objectivity.
And so, leaving the scheduled modifiers within the province of the Administrative
Director, §4660.1(e) simply instructs the Administrative Director to use proper discretion in
 Groneberg 10

amending those modifiers. With regard to the rest of the section, the Legislature itself has
already accounted for “uniformity, consistency, and objectivity.” The Legislature has done so in
subdivision (d) by (1) confirming that the Schedule for Rating Permanent Disabilities as a whole
is prima facie evidence of the amount of permanent disability, and (2) including that the PDRS
must be “pursuant” to the AMA Guides. Thus, the statute strongly upholds use of the AMA
Guides and the PDRS as a way to find permanent disability consistently.
Both these documents instruct the user to combine ratings with the Combined Values
Chart. Combining disabilities is a part of the process of determining permanent disability, which
process the Legislature was trying to improve. But more importantly, the Legislature, speaking
as the people of California, desired the “uniformity, consistency, and objectivity of outcomes”—
not just processes. By the time an outcome has been reached, ratings have already been
combined. The Legislature would desire a predictable manner of combining disabilities and
impairments and a standard which could be used in nearly all situations. This standard, the CVC,
should not be questioned left and right, as this would result in time-consuming appeals and
inconsistent outcomes.
11) The Combined Values Chart Inherently Promotes Uniformity, Consistency, and
Objectivity; So Rebuttal of the Combining Method is Inappropriate.

12) Most or All Adding Needs are Satisfied by Strict Adherence to the Guides, Even
When the CVC Is Used.

Page 1-10 of the PDRS states that ratings are generally combined via the combined-
values formula. Of course, the word “generally” implies that there are exceptions to the rule.
However, the Director, who publishes and amends the Schedule, is not recommending departure
from the Schedule and the combining method, which have statutory support. Rather, exceptions
are made in compliance with the AMA Guides and the Rating Schedule. The AMA Guides lists
specific regions and body parts in which impairments should be added. For example, the AMA
requires addition for “impairments of the joints of the thumb” (page 10), range of motion
impairments within one spinal region (page 401), and “sensory impairments relating to the ulnar
and radial palmar nerves” (page 449). Before ratings are compressed in the CVC table, some of
these component ratings may have already been added. This does not repudiate the Combined
Values Chart or remove it from the process altogether, but rather is in keeping with the AMA
Guides.
Hence, the PDRS and the Guides do not bar the practice of adding impairments. Rather,
those who use the CVC may have already added impairments in accordance with the Guides.
The American Medical Association and the Administrative Director incorporated this need into a
CVC-reliant system, where the CVC has its proper place in any determination of WPI or PD. For
example, a person may have the aforementioned impairments—some in the thumb, some in the
spine, and some in the upper extremity nerves. Within each region, these impairments would be
added. However, the DEU rater would then take those sums from each individual region and
combine the respective sums using the Combined Values Chart after modification. Adding and
combining have their proper places specified in the AMA Guides. Applicants that reject
combining should explain why the normal mandate for addition is not sufficient—why raters
should go above and beyond, rejecting and replacing use of the CVC. On page 1-5 the PDRS
states, “Multiple impairments must be combined in a prescribed manner to produce a final
 Groneberg 11

overall rating.” All this is to say, parties should seek to combine in all instances unless otherwise
instructed.
In regard to multiple thumb joints and the ankle and subtalar joints, impairments are
added by finding the sum percentage. The reason is that “both situations include complex
motions” (page 10 of the Guides). For the exceptions of the spine and digital nerves, there may
be several reasons why the AMA chose to favor adding. Perhaps there is a unique biological
interaction between the impairments, or perhaps such impairments have a unified or synergistic
effect on ability. Such considerations are made without rebutting the AMA Guides, the Schedule,
or the Combined Values Chart. The criteria are not specific, but the AMA indicates that such
impairments have complex or extraordinary properties, and so physicians attempting to go
beyond the Guides should prove complexity or extraordinary circumstances. Hypothetically, a
physician might decide that compression is more accurate and reject the adding method even for
these exceptions. However, the defendant’s CVC position is a “by the book” approach that does
not need to rebut standard procedures.

13) The CVC is a Legally Recognized Standard in California and Must Be Respected as
the Default and Presumptive Standard for Combining.

The need to add is already considered without rebutting the Schedule. Notwithstanding,
applicants may argue that the rating is still inaccurate because the CVC is used at all. Their
solution to this problem is oftentimes to use the adding method instead of the combining method
(not using both methods in harmony as discussed before). But in order to do this, the applicant
attorney must rebut the presumption of the Schedule. They must furnish the requisite degree of
proof, as per the California Evidence Code, showing that the CVC rating (prima facie evidence)
is inaccurate. Such a rebuttal argument should come under close scrutiny. If the argument
portrays the combining method as immoral, wrong in theory, less than standard, or incapable of
accuracy in most cases, then that argument is invalid. In making such a representation, the
applicant would be striking at the law itself, which establishes CVC ratings as prima facie
evidence. Physicians, judges, and raters should be informed that for all the foregoing and
following reasons, the Combined Values Chart is indeed the standard and is not optional.
In fact, the Permanent Disability Rating Schedule is recognized as part of the law. The
California Code of Regulations provides in pertinent part,
The method for the determination of percentages of permanent disability is set
forth in the Schedule for Rating Permanent Disabilities, which has been adopted
by the Administrative Director effective January 1, 2005, and which is hereby
incorporated by reference in its entirety as though it were set forth below. The
schedule adopts and incorporates the American Medical Association (AMA)
Guides to the Evaluation of Permanent Impairment 5th Edition. (8 CCR 9805)
This regulation validates the PDRS and makes it almost a statement of law. Because the
Combined Values Chart is part of the PDRS, it carries the force of a legal presumption. It is not
an optional guide. One can rebut the presumption of the Schedule only in extraordinary cases.
Perhaps the Guides does not have any information about a particular impairment, or maybe an
impairment has an unforeseen effect not accounted for by the Guides. The issue of rebuttal as it
pertains to combining was famously addressed in the case of Richard Kite (2013).
 Groneberg 12

14) The Applicants and Physicians Rely Mostly on the Non-Binding Kite Case for Their
Reasoning.

In Athens Administrators, administrator for East Bay Municipal Utility District,

Petitioner v. Workers' Compensation Appeals Board, Richard Kite, Respondents; applicant
Richard Kite had sustained injury to both hips while employed as a forklift driver. Workers’
Compensation Judge Christopher Miller determined that the CVC method was inappropriate for
combining Kite’s bilateral hip impairments. Instead, the ratings would be added. Miller relied on
the opinion of the qualified medical evaluator to make this judgment call:
Dr. Cheng points to the synergistic effect of one hip injury upon another opposite
hip injury. I agree. It appears logical that a person who is able to compensate
through the opposite member for an injury to one limb is to some extent less
disabled or impaired than someone who cannot so compensate. . . .
QME Dr. Cheng had given specific advice to add impairments rather than combine them:
I remain persuaded that the QME has appropriately determined that the
impairment resulting from applicant’s left and right hip injuries is most accurately
combined using simple addition than by use of the combined-values formula.
Here Miller articulates the important concept of synergy. The website Dictionary.com defines
synergy as “the interaction of elements that when combined produce a total effect that is greater
than the sum of the individual elements, contributions, etc.; synergism.” Synergy is important
because it is used as a basis for not using the combined-values formula. By proving synergy,
applicants have found a way to avoid strictly following the PDRS. The Kite decision established
a pattern for applicants to point out the synergistic effect of impairments and make a case against
CVC ratings. However, this decision is not binding as are Supreme Court decisions or WCAB en
banc decisions. Rather, this is an Appeals Board decision cited as an example of persuasive
reasoning.
In synergy cases, not only does each individual impairment cause detriment to the whole
person, but there is additional detriment that is supposedly not designated in the AMA Guides.
The conjoining of two impairments may cause an added inconvenience in which one impairment
augments the disabling effects of another. For example, one who loses an arm must exert more
effort to perform activities such as driving, writing, and eating. However, one who loses both
arms becomes totally unable to perform those everyday tasks. If he had lost one arm and one ear,
there would be no additional detriment (synergy) because those body parts are supposedly
unrelated. But because of human anatomy, a person who loses two arms has no arms left to
compensate the loss of ability. The second arm was more valuable than the first arm because it
was his last; therefore the rating should arguably be higher. The conjoined effects of impairments
are considered in order to make an accurate assessment of disability. In most cases, the
combined-values formula should be used, but in cases of synergy, applicants argue that
impairments should not be compressed because the rating would be too low.
15) Synergism is Not Black-and-White and Therefore Does Not Objectively Preclude
Combining.

In the majority of cases, CVC ratings are considered the most accurate assessments of
permanent disability. This is because the combined-values formula is the methodology upheld by
the AMA Guides, the Schedule, and the law. However, the formula by itself does not compute
 Groneberg 13

the specific amount of synergy resulting from two impairments. Perhaps AMA ratings already
account for synergy before they are combined.
Synergy is a logical theory; however, it is ubiquitous in cases of multiple impairments. If
a person hurts his right arm and right leg, then that person will be forced to rely more on his left
because of synergy. If a person loses a toe and an ear, that person may have balance issues
because toes and ears both help with balance. In fact, any combination of injuries is bothersome
to deal with; when they are affecting the same person at the same time, they are a synergistic
annoyance and burden on the body. They work together in bringing the person closer to death
and total disability. It can be argued that every case of multiple impairments involves synergy;
therefore it seems unclear where synergy truly arises and where to draw this line in the sand.
In solving this problem, applicants would need to establish a required level of synergy
that warrants rebuttal of the combining method. Perhaps this threshold could be measured in lost
activities of daily living, or maybe it could only apply to certain body parts. However, activities
of daily living do not have clear-cut percentage values. It may be difficult to calculate the
synergistic impact on certain activities such as brushing one’s teeth, sitting, or typing. But to
determine an accurate rating that accounts for “synergy,” a physician would need to calculate the
such a synergistic loss in terms of the ADLs’ percentage value.

16) It is Fanciful to Assume that Addition is the Precise and Accurate Approach to
Synergism.

Adding is not the only alternative to combining, or the only method that produces higher
ratings. Therefore, the physician should explain in what manner adding reflects impairment, and
how addition captures every percent of impairment created by synergy. Otherwise, why stop at
adding? Why not multiply? One AME simply responded that no physician actually makes a
practice of multiplying impairments. Apparently, adding has become the mainstream method to
rebut the CVC. But to employ the adding method solely because synergy exists assumes a false
dichotomy between adding and combining. In fact, the AMA loosely proposes other alternatives
beside addition:
Other options are to combine (add, subtract, or multiply) multiple impairments
based upon the extent to which they affect an individual’s ability to perform
activities of daily living.
Here the Guides mention activities of daily living. In workers’ compensation, this is the proper
measure of all impairment. Defendants should ask the AME how the impact on the activities of
daily living is both synergistic and additive. The physician would respond by counting the
ADL’s or by giving a mathematical proof after assigning each ADL a percentage value. Kite
logic must have limits; otherwise rebuttals of the Combined Values Chart would become the
norm.

17) The AMA Guides Upholds Combining While Addressing the Synergism of Multiple
Impairments.

On page 435, the AMA Guides hints that synergy may be a reason to increase impairment
ratings, especially when bilateral members are involved. This seems to suggest that AMA ratings
already take synergy into account. But even so, the AMA still recommends the Combined Values
Chart:
 Groneberg 14

Cases of bilateral involvement require completion of a separate record form for

each upper extremity. The whole person impairment values derived for each
upper extremity are then combined using the Combined Values Chart (p. 604) to
derive the total whole person impairment. If the total combined whole person
impairment does not seem to adequately reflect the actual extent of alteration in
the individual’s ability to perform activities of daily living, this should be noted.
Here the AMA addresses situations in which bilateral extremities (both arms or both legs) are
impaired. In cases of synergy, often the injured worker has bilateral impairment, or impairment
on both sides. This is because a bilateral member is relied on heavily to compensate the loss of
the corresponding member. The synergy of such a condition often serves as the basis for
obtaining a higher PD rating. But here the Guides clearly instructs the user to combine the
impairment ratings by use of the Combined Values Chart, yielding a compressed rating even in a
case of bilateral impairment. Again on page 437 the AMA Guides states,
If both limbs are involved, calculate the whole person impairment for each on a
separate chart and combine the percents (Combined Values Chart).
Indeed, there are cases in which bilateral impairments should be combined and not added. Even
in the most basic example of bilateral limbs, which would theoretically cause synergy, the
Combined Values Chart remains the default tool for combining impairments according to the
Guides. Thus, the existence of synergy or bilateral impairments does not indicate that ratings
should be inflated. The Guides merely affords that “this should be noted,” suggesting the
feasibility of a higher rating in such cases. But the mere existence of an anatomical relationship
between parts does not prove synergy. If parts are bilateral or dependent on each other,
impairment is not necessarily additive. The physician should have to prove a synergistic effect
on the activities of daily living and determine this difference in the form of a percentage.
If both the physician and the rater combine as the AMA Guides says, then they have
promoted the Legislature’s aim of uniformity and avoiding discrepancy. It is generally
unnecessary to use a different method because the AMA already addresses this need.
Impairments of the same spinal region and certain nerves and thumb joints are added according
to the AMA Guides. This adding of impairments boosts WPI and accounts for unique biological
relationships between parts, for which synergy rebuttals also attempt to account. All this is to
say, a finding of any synergy whatsoever does not mean that standard ratings are inaccurate or
that the AMA has not foreseen such a case. The physician must show that the patient’s condition
is too complex to be cleanly or squarely measured by the Guides and that he must deviate from
protocol.
For a rebuttal to succeed, the Workers’ Compensation Judge must also agree with the
physician and accept his reasoning for the higher WPI. In the famous Guzman case, the Court of
Appeal determined,
If the explanation fails to convince the WCJ or WCAB that departure from strict
application of the applicable tables and measurements in the Guides is warranted
in the current situation, the physician's opinion will properly be rejected.
Even if the physician explains his reasons for rebuttal, the explanation must wash through the
judge’s opinion. Till then, the AMA Guides is presumed to be accurate and to account for all
situations. Perhaps the AMA regarded combining as the most accurate method even despite the
conjoined effects of impairments. Anyway, the CVC remains the default and general standard
even in synergy cases.
 Groneberg 15

18) Labor Code §4658 Already Accounts for Synergy and Balances Out the
Compressive Nature of the PD Scale.

Labor Code §4658 sets up the plan for relating the percentage of disability to the amount
of compensation. If a PD rating is high, the marginal increase in compensation will also be
higher for every percent within that high range. The difference between ratings of 68% and 69%
is 8 weeks of additional compensation, but the difference between 15% and 16% is only 5
additional weeks. In Column 2, the “Number of weeks for which two-thirds of average weekly
earnings allowed for each 1 percent of permanent disability within percentage range,” increases
by 1 week for each ascending range of permanent disability. Graphically, the relationship
between the percentage of permanent disability (x) and the amount of compensation (y) has the
appearance of an upward curve becoming steeper; it is not altogether linear. On top of this, once
a person enters the 70% to 99.75% range, the rate doubles from the previous range, and
compensation becomes 16 weeks for every percent.
This observation speaks volumes. First of all, it refutes an easy misconception of the
combined-values chart. It may be thought that CVC ratings are squished and compacted and that
they underestimate true impairment in order to save employers money. However, this is not the
case. The combined-values scale is not a linear scale; higher ratings are scarce and more difficult
to obtain because they represent impairment “maxing out” toward death for whole person
impairment and total disability for PD. High ratings are compensated with a far greater award
than would be expected on a linear scale. And so, the CVC does not unfairly devalue the impact
of multiple disabilities. The statute outlining compensation makes up for the “compression” of
ratings.
It would seem that applicants are familiar with the nature of PD ratings and know when
they should be increased. However, the PD rating is more properly viewed as a theoretical figure
representing permanent disability only for purposes of law (in a logical way, of course). What
matters in the end is the compensation awarded to the injured worker. Therefore, if compensation
is increased, the rating itself should not need to be increased. The Legislature, in setting up a
system of increased marginal compensation, recognized that, for a variety of reasons, high-
ranking permanent disability would have a major impact on someone’s life. For this reason,
Labor Code §4658 even grants a life pension to those exceeding 69% permanent disability:
If the permanent disability is at least 70 percent, but less than 100 percent, 1.5
percent of the average weekly earnings for each 1 percent of disability in excess
of 60 percent is to be paid during the remainder of life, after payment for the
maximum number of weeks specified in Section 4658 has been made.
Here, §4658 allows extra special benefits to those with high percentages of permanent disability
ratings. The reason for this favor is the overall severity of having disability 70% or higher. As a
person incurs more and more impairments, that person’s condition becomes exponentially more
severe because of the holistic effect of disabilities. This concept sounds remarkably the same as
synergy. Two or more impairments interacting have a conjoined, adverse effect on the person’s
condition and ability to cope with each impairment. The Legislature understood that the number
of impairments and high percentages would incrementally bring the person closer to a status of
immobility or death—hence the provision for a life pension. This is an overall effect and is not
seen in view of each individual impairment. This concept of holism is essentially the same as
synergy. Thus, the Legislature does in fact account for synergy by awarding special benefits and
extra high compensation to those with higher ratings. And so, synergy does not warrant a CVC
 Groneberg 16

rebuttal because it already accounted for. Also, increased marginal compensation makes up for
any compression resulting from the CVC.
In fact, the Legislature has updated this statute over the years with liberal intent. In 1984
a worker could receive a maximum of 8 weeks’ compensation for each percent at or higher than
70%. Today the number of weeks has been boosted higher for the percent ranges, and the
maximum is now 16 weeks for every percent 70% and higher. Applicants tend to see only the
“compressing” aspect of the CVC and not to consider it in view of the larger scheme that favors
injured workers and even addresses their concerns in some cases.

19) According to Labor Code §4662, Ratings Can Be Increased to 100 Percent on
Account of Synergism without Rebutting the Schedule or the CVC.

In cases of permanent total disability, the Legislature has found more ways to account for
synergy. According to §4662, if an employee incurs any of the following arising out of work, he
will get a 100% permanent disability rating:
(1) Loss of both eyes or the sight thereof. (2) Loss of both hands or the use
thereof. (3) An injury resulting in a practically total paralysis. (4) An injury to
the brain resulting in permanent mental incapacity.
Lastly, the statue provides that “[i]n all other cases, permanent total disability shall be
determined in accordance with the fact.” This means that the court may find 100% permanent
disability simply by ascertaining the total nature of the person’s disability. When a person has
been rendered totally disabled, it should be manifest and determinable according to the facts of
the case. In such instances, the state does not require the assignment of AMA ratings; however,
consideration and incorporation of AMA descriptions and measurements are still required as per
§4660.1 and the Guzman case. For example, a person with two hand amputations (54% WPI
each) would obtain an 86-99% rating under the Rating Schedule depending on his age and
occupation. Labor Code §4662 makes sure that this injured employee would rate 100%
regardless, due to the nature of his impairment. The labor code in this provision expressly
captures the synergistic effect of losing two hands or two eyes, which is totally disabling for
purposes of the law.

20) PD Ratings Only Mean What Standard Guidelines Say They Mean and Only Make
Sense in the Larger Framework; Adding Misapplies and Misinterprets the Nature
of PD Ratings.

Now, in reality a blind man can still perform certain tasks and even take certain
occupations (such as teaching and music) despite his 100% disability. The PD rating is not an
absolutely transparent statement of disability; it functions as a practical number that aims first
and foremost to secure the corresponding award. The State of California tried to make PD ratings
as realistic as possible to convey the idea of disability maxing out toward 100%, but applicants
create confusion by manipulating these ratings. They seek to go beyond standardized ratings by
adding instead of combining them. Supposedly, CVC and AMA ratings are inaccurate and
should be increased because of factors such as synergy. But in doing so, one is presuming to
have a superior understanding of PD ratings, as if PD ratings were not abstractions. Those who
manipulate ratings by addition are not keeping the larger framework in perspective. All ratings,
whether WPI or PD, must stay within the bounds of the Guides and the Schedule if awards are to
 Groneberg 17

be made as the Legislature intended. A physician may find a more accurate percentage for an
uncombined impairment under Guzman. However, a statement on adding rather than combining
has ramifications that affect the prerogatives of both the judge and the rating specialist. Adding
or combining is not a matter of detail, but pertains to the very nature of ratings and the theory of
what they represent in the whole person. The PDRS, the AMA Guides, and the Combined Values
Chart all exist within a delicate system of legal checks and balances that can account for the
concerns of injured workers consistently, uniformly, and objectively. For that reason, the CVC
should be upheld as the standard determiner of combined PD ratings.

21) Labor Code §4751 Also Accounts for Synergy.

Synergy is also taken into account by Labor Code §4751. This code allows an injured
worker to receive benefits for the combination of two injuries, even when the first impairment is
preexisting. The idea is that
. . . the degree of disability caused by the combination of both disabilities is
greater than that which would have resulted from the subsequent injury alone . . .
Such additional disability could only manifest if the subsequent injury aggravated or augmented
the effects of the prior injury. This interaction causes synergistic disability for which the
Legislature sought to relieve injured workers. One of the two possible conditions for an
employee to receive such benefits is that
. . . the previous disability or impairment affected a hand, an arm, a foot, a leg, or
an eye, and the permanent disability resulting from the subsequent injury affects
the opposite and corresponding member . . . .
Here Labor Code §4751 makes synergy resulting from bilateral impairments in the specified
members, eligible for workers’ compensation. This list is specific about which body parts
qualify. So in a way, the Legislature has drawn a line in the sand at which synergy becomes
compensable, and the same statute requires that the combined rating be 70% or higher in
qualifying instances. Otherwise, the synergism of impairments is not always a black-and-white
situation. As discussed before, synergy should be narrowly defined to avoid finding it in every
case. Applicants concerned about synergistic injuries can rely upon §4658, §4662, §4751, and
other standard procedures to account for their synergy without rebutting standard ratings. The
statutes make no mention of adding or combining impairments; and so the labor code accounts
for synergy without requiring departure from the Combined Values Chart. In synergy cases is it
necessary to rebut the Combined Values Chart because the CVC exists within a statutory scheme
that accounts for synergy.
Because the AMA Guides, the PDRS, and statutes take numerous applicants’ concerns
into consideration, there is little need to rebut standard procedures. There is so much liberality
granted by these provisions that there is hardly a need to reject the CVC for higher ratings. And
so the Combined Values Chart retains its place as the ordinary, standard, logical, and default
method in all cases, despite synergy.

22) Under the Guzman Holding, a Physician Must Stay within the Four Corners of the
AMA Guides, Even When Rebutting in Complex and Extraordinary Circumstances.

If the physician decides that adding is more appropriate, the judge will typically allow
some flexibility. However, the physician must stay within the four corners of the AMA Guides
 Groneberg 18

and within the bounds of his medical expertise. This “four corners” rule was established in the
case of Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd (2010). This case deserves
special attention because it is explicitly mentioned in California Labor Code §4660.1(h):
In enacting the act adding this section, it is not the intent of the Legislature to
overrule the holding in Milpitas Unified School District v. Workers' Comp.
Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808.
After this subdivision was incorporated into the Labor Code, the Guzman holding became “good
law” so to speak—an approved legal precedent. This precedent has since established principles
for rebutting impairment ratings found in the AMA Guides. However, the court was stricter in
allowing rebuttals than some people might think.
In this matter, applicant Joyce Guzman, a secretary for the school district, had tripped on
some computer wires, injuring her neck and back, and was also diagnosed with work-related
carpal tunnel syndrome. Medical evaluator Dr. Feinberg believed that he could not capture
Guzman’s true impairment by strictly applying the AMA Guides. So instead, he assessed to what
degree impairment of the upper extremities affected her activities of daily living and calculated a
WPI that seemed most accurate to him based on the lost activities of daily living. Such a method
resulted in a permanent disability rating of 39% for the upper extremities; however, the DEU
rater Wong disagreed with Dr. Feinberg’s methods and came up with a permanent disability
rating of 12% for the upper extremities. Although Wong’s finding was the stricter application of
the Guides and was based on medical evidence, the Board decided that Dr. Feinberg had
exercised his clinical discretion accurately and duly. As long as he followed in the spirit of the
Guides and presented substantial evidence, he would not be bound to use only prescribed ratings.
The Court of Appeal affirmed the WCAB’s conclusion:
The Board thus correctly rejected the argument that only the descriptions and
measurements of impairments with their corresponding percentages may be
incorporated into the WPI assessment. The statute, noted the Board, did not
prohibit incorporation of the portions outside the descriptions, measurements, and
percentages in a complex case not [***36] addressed by the chapter devoted to
the affected body part or system.
According to the decision, a physician may refer to sources other than the AMA Guides in his
evaluation of whole person impairment. However, the impairment must be complex and not
easily ratable or clearly addressed by the Guides. No ordinary and foreseeable circumstance
would allow rebuttal of the Guides. According to the same decision, the Legislature did not wish
to “require every complex situation to be forced into preset measurement criteria.” Again, the
court here was recognizing complexity as a requirement for rebuttal. In cases where the
impairments are complex, that is to say, not easily ratable with the standard criteria, then the
physician may depart from normal ratings. In complex cases that call for departure from the
Gudies, the physician still has to incorporate portions of the Guides into his deductions, using his
expertise and credible evidence.
In the opinion, the court refers to the Almaraz case, a case that goes hand-in-hand with
Guzman, and affirming that a physician cannot “go outside the four corners of the AMA
Guides.” In fact, these cases were consolidated and decided concurrently. The Almaraz/Guzman
court made the following notable remarks:
[T]he burden of rebutting a scheduled permanent disability rating rests with the
party disputing that rating; . . . We emphasize that our decision does not permit a
physician to utilize any chapter, table, or method in the AMA Guides simply to
 Groneberg 19

achieve a desired result . . . Moreover, a physician's WPI opinion that is not based
on the AMA Guides does not constitute substantial evidence.
Here the court affirmed the notion that the Guides and the Schedule are rebuttable, but only in
irregular circumstances and with substantial evidence. In the context of the case, Mario Almaraz
was a truck driver who had injured his back. The AME Dr. Fishman stated that his condition was
especially limiting since he could not sit for long periods of time, and he could no longer perform
all aspects of his job without limitation. Therefore, the applicant petitioned for a greater rating
than the rating prescribed by the Guides, and the Court of Appeal remanded the case to the WCJ
for further proceedings that would allow rebuttal.

23) Combining Remains the Most Accurate Method notwithstanding Guzman.

The same principles regarding the burden of proof and relying on legal standards apply to
adding versus combining. It is the applicant’s burden to prove that adding is more accurate; till
then, combining is used. A party upholding the AMA Guides and CVC ratings does not need to
justify its approach since it is presumed accurate. Rather, the applicant has the burden of
explaining why one should deviate from these legal standards. A physician serving in a case has
to provide substantial evidence and reasoning that shows (1) why his method of computing
impairment is more accurate, (2) why it is appropriate given the unforeseen (complex and
extraordinary) circumstances of the case, (3) how precise the new rating is (every additional
percent should be explicable), and (4) how the rating follows the AMA Guides both in spirit
while incorporating the letter also. However, this is difficult as the Guides upholds the
combining method in almost all circumstances.

24) The Guzman Holding Applies to the Finding of Impairments, Not the Combining of
Permanent Disabilities.
However, neither Almaraz nor Guzman addressed whether adding is an accurate
replacement for the combining method. Applicant attorneys would have to draw this conclusion
indirectly from these cases. The court simply allowed for occasional and narrowly tailored
departure from normal AMA impairment standards. An impairment standard is a single,
uncombined impairment rating for any particular impairment. When the rater obtains his
instructions from the WCJ, he receives all the impairment standards and factors of disability.
These impairment standards may have been modified under Guzman; however, the ratings are
left uncombined. And so, it is largely irrelevant what method the physician used to combine
WPI(s) into a single WPI. By the time the impairments are modified and adjusted, they are no
longer “impairment” but “permanent disability,” and are within the realm of the Disability
Evaluation Unit (DEU). Hence, the rater combines those modified ratings by using the PDRS.
But of course the rater must follow the instructions of the workers’ compensation judge.
25) It Is Impossible to Deduce from the AMA Guides Whether Impairments Should Be
Added in Rebuttal of the CVC.
Again, the Almaraz/Guzman holding does not mention adding versus combining. On the
contrary, the holding makes it rather difficult to champion the adding method over the combining
method. A rebuttal of the Schedule (which includes the CVC and the Guides) has to stay within
the four corners of the Guides. However, the guidebook does not teach any principles regarding
the selection of a particular different method to combine. What matters most from the physician,
 Groneberg 20

is the individual uncombined impairment ratings, which the rater then adjusts and combines—the
Guides is mainly intended for rating impairment. Moreover, the Combined Values Chart of the
AMA Guides (pages 604 to 606) contains errors. Thus it is clear that AMA Guides, on which the
physician relies, was not intended to be the final authority on combining; rebutting the CVC falls
outside the four corners of the Guides.
There are no common, discernable, or stated criteria that warrant the use of adding, other
than specific instances where the AMA says to do so. They even acknowledge this on page 10:
A scientific formula has not been established to indicate the best way to combine
multiple impairments. Given the diversity of impairments and great variability
inherent in combining multiple impairments, it is difficult to establish a formula
that accounts for all situations.
Because there is no scientific formula that can “indicate the best way to combine multiple
impairments,” one cannot determine what alternative method is most accurate based on the AMA
Guides. This is because the combining of impairments is not a matter of science but rather a
matter of following outlined procedures. The physician cannot be exact and scientific in
determining the most accurate method of combining. Such an opinion would not constitute
substantial medical evidence because it exceeds the capacity of scientific expertise and trespasses
onto DEU ground. A physician by definition is a scientist, and as such is not qualified to
comment on a legal matter such as combining.
However, the AMA does give some degree of allowance. On the same page, the text hints
that other methods may be okay in other jurisdictions.
States also use different techniques when combining impairments. Many workers’
compensation statutes contain provisions that combine impairments to produce a
summary rating that is more than additive. Other options are to combine (add,
subtract, or multiply) multiple impairments based upon the extent to which they
affect an individual’s ability to perform activities of daily living. The current
edition has retained the same combined values chart, since it has become the
standard of practice in many jurisdictions.
Again, the AMA does not specifically state which alternative method is most appropriate given
the circumstance. Rather, the text simply directs physicians to follow the policies of their state or
jurisdiction since the AMA cannot provide direction in this matter. And so, physicians, judges,
and raters should uphold and use the method that their jurisdiction promotes. In California, this
method is the Combined Values Chart, according to the Permanent Disability Rating Schedule,
which instructs raters to combine. Following the PDRS establishes prima facie evidence. And so
the Combined Values Chart is the “standard of practice” in California.
A physician cannot make a concrete deduction based on the text of the Guides to add
rather than to combine. In fact, the AMA gives no specific instructions on which alternative
method to use in departure from normal procedures. And so, the physician’s opinion would have
to be based on this mysterious, open language in the Guides, or on a convoluted springboard
interpretation of AMA directives to add certain impairments. Either way, the explanation must
fall under the four corners of the Guides. Otherwise, the opinion is just a belief and does not
constitute substantial medical evidence. Regarding a physician’s opinion, the WCAB in the
Johnson case determined,
This opinion was stated as a matter of belief as opposed to reasonable medical probability
and is thus not substantial evidence.
 Groneberg 21

Interviewers, WCJ’s, and lawyers should scrutinize the physician’s advice to determine
whether it is reasonable in light of the AMA Guides. As of now, the text cannot reasonably
provide grounds for the physician to rebut the CVC. But this may be possible in the future. The
text says on page 10:
Other approaches, when published in scientific peer-reviewed literature, will be evaluated
for future editions.
Newer editions of the Guides (the edition currently required is the 5th) may contain adequate
explanations of alternative methods so as to indicate which are most accurate. Then, only if the
physician convinces the judge that a different method of combining is superior to the combined-
values formula, even considering the logic of the CVC, in that particular complex situation, a
rebuttal of the Guides can be made.
There is no way that the Guzman holding promotes adding disabilities. This case speaks
to the determination of an individual component of whole-person impairment, not combined
disability. The role of finding and combining disability falls into the hands the rating specialist,
who receives individual, uncombined impairment ratings for the relevant body systems. In the
Guzman case, Dr. Wong had submitted an upper extremity rating that was higher than
prescribed, and would have resulted in a higher PD rating than was scheduled. The doctor had
made his deduction about this percentage of impairment based on the Guides, by evaluating
activities of daily living. A DEU rater is provided with component or uncombined impairment
ratings. Hence, whether the physician believes it is more accurate to add the disabilities does not
matter because his job is only relevant insofar as uncombined percentages are concerned.
However, the rater must still follow the judge’s instructions even if the judge agrees with the
physician’s Kite logic.

26) “Complex or Extraordinary” Is an Appropriate Condition for Rebuttal.

The Diaz case was questionable, but even the WCAB affirmed that rejection of the CVC
required complex or extraordinary circumstances.
Those who felt that the CVC was dead or dying were mistaken, because the
standard set out in the Kite case appeared to require a special set of circumstances
involving body parts that relied upon each other in a rather unique way to meet
the test in Kite of having a synergistic effect and of course there would have to be
substantial medical evidence which would support such a finding.
Here, the Board used the words “special” and “unique” to describe the circumstances that call for
rebuttal of the CVC. This same conclusion was reached in the case of Kara Ellis, Applicant v.
California Highway Patrol, Defendant.
The WCJ feels that the CVC should be used in almost all cases and shares a
legitimate concern that the additive method can be overused and abused. The
additive method should only be employed in cases where there are compelling
medical circumstances.
The WCJ may not have been fully persuaded to rely on the additive method in
this case where we had to reach across specialties, except that we had specialists
on both ends of the spectrum (i.e. the AME in psychology and the AME in
orthopedics) in agreement that there was a synergistic effect and that the additive
method was more appropriate than the CVC.
The WCAB also held in the Foxworthy case that the CVC “should ordinarily be applied unless
there is some overriding reason to use a different method.”
 Groneberg 22

27) Under the Blackledge Holding, a Physician’s Medical Expertise Cannot Extend to
Adding Permanent Disabilities.

The case of Cynthia Blackledge, Applicant v. Bank of America, ACE American Insurance
Company, Defendants is an en banc decision of the WCAB. As such, it holds binding authority
under the California Code of Regulations (8 CCR 10341):
En banc decisions of the Appeals Board are binding on panels of the Appeals
Board and workers' compensation judges as legal precedent under the principle of
stare decisis.
The en banc ruling of this case was made to establish solid and defined rules for the physician,
the judge, and the rater. In accordance with this precedence, each person must honor the
boundaries of his respective role, not overstepping his discretion. As far as adding and
combining under Blackledge principles, the physician, the judge, and the rater would have
limited authority in determining whether to add or to combine in accordance with the description
of their roles.
In the case, Cynthia Blackledge had slipped on stairs while employed by Bank of
America and consequently injured her low back, wrist, hip, and knee. Orthopedic AME Dr.
Pechman had assigned her a WP score of 10%, and the WCJ had directed the rater to determine
permanent disability in accordance with the AMA Guides. However, the rater had “mechanically
applied” the AMA Guides and determined 0% PD for his failure to find direct trauma,
radiculopathy, spasm, and loss of motion. The Workers’ Compensation Appeals Board declared
that a rating specialist could not make such a medical correction when the judge had not asked
him to do so. A rater’s role is extremely limited, as interpreted and declared by the Board:
A rater "is an expert witness only in the application of the rating schedule" . . . A rater is
not a trier of fact and has no fact-finding power . . . A rater cannot depart from the rating
instructions or omit any factors of disability described therein from the recommended
rating . . .
The rating specialist may rate solely on the basis of the information provided him by the judge.
Above all, he must rate in strict accordance with the judge’s directions and apply his expertise of
the Rating Schedule. However, if the workers’ compensation judge has a question about how to
combine multiple disabilities, the rater can provide input. The Blackledge holding allows the
specialist to re-rate impairment using the AMA Guides if doing so is part of the WCJ’s
directions. In these cases, the WCJ must specifically request the rater’s assistance when the
physician’s opinion is questionable in light of AMA standards. The Blackledge case says,
As discussed in Section II-C, there may be occasional instances where a WCJ is
uncertain whether a physician's report is entirely consonant with the AMA
Guides. In these instances after fully describing the WPI(s) to be rated, the WCJ
may also request the rater's expertise in assessing whether the report(s) relied
upon properly applied the AMA Guides. In these limited circumstances, the rater,
after issuing a recommended rating using the specified WPI(s), may also give an
opinion explaining whether the WPI(s) should be increased or decreased and the
rationale therefor.
According to the Blackledge decision, the judge as the trier of fact does not need to accept the
physician’s opinion blindly. Rather, the AMA Guides are open for all to see, and the judge may
suspect that the guidebook has been abused.
 Groneberg 23

For example, a physician may say, “Adding is required for impairments of the thumb
joints; therefore I can add any other impairments I want.” Obviously, such reasoning is not really
based on the AMA Guides. Even the WCAB in Kite acknowledged that “the AMA Guides
express favor toward the combined values method.” Under the Blackledge ruling, the physician’s
opinion must comport with the Guides in order to be considered substantial evidence:
Among other things, to constitute substantial evidence regarding WPI a
physician's opinion must comport with the AMA Guides, including [**19] as
applied and interpreted in published appellate opinions and en banc decisions of
the Appeals Board.
In a case of multiple impairments, the agreed medical evaluator might point to synergy,
bilateral impairments, or an interdependence between parts. Often the solution is to add these
impairments rather than combine them. In the cases of La Count, Miller, Kite, and Diaz, the
physicians opined that adding impairments accurately reflected synergism. However, none of
these cases are “published appellate opinions” or “en banc decisions of the Appeals Board.” At
most, they are WCAB panel decisions. The issue of rebutting the CVC has not been decided by
any Court of Appeal or WCAB en banc decision. Thus, an opinion about synergy or adding does
not have the support of binding precedent. Therefore, a physician is not empowered by the logic
of Kite (a WCAB panel decision) in the same way as Guzman (an en banc ruling). If a physician
advocates the adding method because of synergy, the WCJ as a fact finder may determine that
the physican’s opinion does not comport with the AMA Guides. The judge may think that
synergy is nonsense and simply instruct the rater to combine the disabilities using the Combined
Values Chart. Kite logic has no binding power on the WCJ.
In this en banc decision, the Board never allows the physician to make a substantial
opinion about disability. Yes, the physician may comment about the worker’s ability to compete
in the open labor market (AMA Guides page 8); however, this opinion is not bound up in the
physician’s expertise. It should not be considered substantial medical evidence. The WCAB
defined the physician’s role:
The Physician's Role Is To Assess the Injured Employee's Whole Person
Impairment Percentage(s) by a Report that Sets Forth Facts and Reasoning to
Support its Conclusions and that Comports with the AMA Guides and Case Law .
. . Under the AMA Guides, a physician performs an evaluation to determine the
WPI(s) for the injured employee's medical condition(s), expressed as a
percentage.
The physician’s opinion should pertain exclusively to impairment and not to disability.
Therefore, a WCJ's rating instructions are required to specify the WPI(s) to be
rated. A WCJ may direct a rater to rate the injured employee's permanent
disability specifying the WPI percentage to be used for each injured body part or
may instruct the rater to utilize the WPI(s) contained.

28) In Combining Impairments, the Physician Must Be Legally Sound under the
Supreme Court Holding of the Zemke Case.

Earnest Zemke incurred a back injury working as a mechanic and then received an award
apportioning 50% of the disability to preexisting arthritis. The WCAB confirmed this
apportionment, but the petitioner appealed, bringing the case to the California Supreme Court.
The Supreme Court interpreted Section 4663 to mean that the employer is responsible for the
 Groneberg 24

aggravation of a preexisting injury but not the portion of disability which would have naturally
resulted from the preexisting injury without aggravation. They rejected Dr. Nippel’s opinion
because it failed to state what facts led him to the 50% determination; moreover the IME Dr.
Schoenberg implied that the arthritis would have been barely symptomatic without the
subsequent injury. Dr. Nippel made a conclusion of law which was outside his expertise.
Therefore the Supreme Court annulled the apportionment and remanded to the Board. They
declared in reference to Dr. Nippel’s opinion:
A medical report predicated upon an incorrect legal theory and devoid of relevant
factual basis, as well as a medical opinion extended beyond the range of the
physician's expertise, cannot rise to a higher level than its own inadequate
premises.

29) The Workers’ Compensation Judge May Not Reject the CVC for Personal Reasons
or without Substantial Medical Evidence.

In the questionable Kite case, the PDRS and the CVC were rebutted based on the
opinions of the physician that hip impairments were synergistic. In determining to rebut the
presumption, WCJ Christopher Miller relied on the agreed medical evaluator, Dr. Cheng, who
had personally evaluated Richard Kite. Dr. Cheng had expressly advised that the ratings should
be added and had explained why. Although the doctor’s opinion was considered substantial
medical evidence in the Kite case, this was not true in the case of Sheriee Borela (2014).
In Sheriee Borela, Applicant v. State of California, Department of Motor Vehicles,
Legally Uninsured, State Compensation Insurance Fund/State Contract Services, Adjusting
Agency, Defendants applicant Sheriee Borela had sustained injury to her neck, back, face, knees,
and psyche. The WCJ had determined that the impairments should be added and found a
permanent disability rating of 73 percent. Here the Workers’ Compensation Appeals Board
overturned the WCJ’s decision because there was not enough evidence to support it. The judge
had instructed the DEU rater, "the orthopedic and psychiatric ratings are to be combined in an
additive fashion, as there is no overlap with no Orthopedic add-on for pain." This determination
had been made outside the WCJ’s official discretion and hence was an arbitrary finding. For this
reason, the Appeals Board rejected the instructions provided to the DEU and quoted the agreed
medical evaluator, who had not provided the WCJ enough evidence to add rather than combine:
Here, Dr. Steiner indicated that applicant's "condition is neither complex nor
extraordinary" and does not recommend the combination of the separate
disabilities in the manner applied by the WCJ. The PDRS provides that the CVC
is "generally" used to combine multiple disabilities, but that other methodology
may be used depending upon the relevant circumstances. Here, the WCJ did not
articulate a reason for not following the rating schedule . . .
Since Borela’s condition was not complex or extraordinary, there was no reason to depart from
standard rating procedure. The CVC is supposed to be used in the vast majority of cases and in
all cases where the Guides can be ordinarily applied. Here the WCJ did not hold the CVC to this
level but offered her personal reason in favor of the adding method. In doing so, she was taking
on the role of an agreed medical evaluator, who is tasked with determining what is medically
appropriate. This usurpation violates the principles set forth in the case Cynthia Blackledge,
Applicant v. Bank of America, ACE American Insurance Company, Defendants (2010). In this
case, the role of WCJ was defined as follows:
 Groneberg 25

[I]n the context of a formal rating, the WCJ's role is to frame instructions, based
on substantial medical evidence, that specifically and fully describe the whole
person impairment(s) to be rated; in addition, a WCJ's instructions may ask a rater
to offer an expert opinion on what whole person impairment(s) should or should
not be rated.
Since the Worker’s Compensation Judge is presumably not a medical expert, he must base all
medical conclusions, findings, and reasoning on the opinion of the physician. The judge did not
do so in the Borela case. Instead, she issued her own reason to add impairments, saying that
“there is no overlap with no Orthopedic add-on for pain.” She was not qualified to determine a
lack of overlap, and the physician had not even indicated that lack of overlap warranted use of
the adding method.

30) The Board in the Foxworthy Case Held That the CVC Is Presumptively
Accurate and Must Be Regarded as Such.

The Foxworthy case is important because the WCAB found that the Combined Values
Chart is accurate in the determination of permanent disability: it cannot be disregarded for every
possible reason. In Foxworthy v. State of California, Dept. of Parks and Recreation, applicant
Margaret Foxworthy incurred injury to her lower back, psyche, and internal system while
engaging in rescue activity as a park ranger. The WCJ felt that the ratings for each impairment
should be combined using the Multiple Disabilities Table for a permanent disability of 71%
(higher than the CVC rating of 67%). He later changed his mind to advocate the adding method,
which would produce a rating of 92%. The WCAB rejected these methods as arbitrary:
We recognize that the CVC is a guide, but it should ordinarily be applied unless
there is some overriding reason to use a different method of accounting for
multiple impairments. Here, the WCJ did not apply the CVC in his assessment of
applicant's overall impairment from her orthopedic, psychiatric, internal and
sexual dysfunction injuries.
Here the WCAB declared that the CVC must be “applied unless there is some overriding reason
to use a different method of accounting for multiple impairments.” Although the WCAB
considered the CVC a “guide,” the Board also noted that it takes precedence in the vast majority
of cases. The CVC remains presumptively accurate unless proven otherwise. The WCJ had erred
by regarding the Combined Values Chart as a mere suggestion or reference, and not as a standard
or presumption. Indeed, he had provided some reasoning that impairments did not overlap, but
this degree of proof was not sufficient to rebut the combining method according to California
Evidence Code §602. This explanation does not meet the “requisite degree of proof.”
From the holding, it is clear that the Combined Values Chart does not need to be
examined or checked for accuracy, as the WCJ had done in this case. The CVC does not require
special circumstances such as overlapping impairment. On the contrary, the CVC is applicable in
all ordinary circumstances, and any rebuttals must demonstrate complex or extraordinary
circumstances. If a judge, physician, or rater does not hold the CVC in this proper esteem, the
opinion does not constitute substantial reasoning or evidence.

31) Overlapping Disability is Not a Necessary Prerequisite of the CVC According to the
Foxworthy holding.
 Groneberg 26

In workers’ compensation cases, the terms overlap and duplication refer to work
disabilities that are not distinctly separate but have common effects, so that the rating of one
impairment may include a consideration of the effects of another impairment. The 1997 PDRS
(pages 1-9 to 1-11) provides explanations and examples of duplication and overlap. Duplication
is accounting for the same factor of disability twice—for example, when a single injury causes
impairment both to the back and to the knee. In this example, the descriptions of the knee
impairment and the back impairment both include provisions against lifting heavy objects. The
back disability already restricts the person from lifting heavy objects. And so, the same disability
associated with the knee would increase the percentage of disability beyond the person’s real
disability by duplicating the work restriction against heavy lifting. The term overlap is the same
concept, but applied to multiple injuries (not impairments) that may be prior and subsequent.
This is the strict vocabulary according to the old Schedule, but in cases the concept of overlap is
conflated with duplication. It is also important not to confuse activities of daily living with
ability to compete in the open labor market. The AMA Guides permits the doctor to comment on
work restrictions; however, the relevance of this commenting can only extend so far as the
physician is qualified under the Blackledge holding.
Another interesting part of the Foxworthy case is how the WCAB dealt with the claim of
overlap. Here, a mere lack of “overlap” did not warrant rebuttal of the CVC. In this case, the
Workers’ Compensation Judge had assumed that because the impairments did not clearly
overlap, it was appropriate to use a different method other than combining. The WCAB analyzed
the judge’s faulty reasoning:
Instead, he concluded that applicant's impairments from the four different body
regions do not overlap. He then determined that it was preferable to apply the
MDT from the 1997 PDRS because it would take into account potential overlap
of disability while more accurately reflecting applicant's impaired ability to
compete in the open labor market. That, of course, is not the proper measure.
The WCJ had assumed wrongly that impairments should be combined via the old Schedule
Multiple Disabilities Table. His reliance on the 1997 Schedule, rather than the current PDRS,
was erroneous because those standards are not “the proper measure.” The rules of the old 1997
PDRS are no longer the standards for combining today. He later changed his mind to say that the
adding method was more appropriate. The WCAB brought this error to light:
Although a permanent disability rating based on the 2005 PDRS can be rebutted,
there has been no showing of a reason not to use the CVC to calculate applicant's
permanent disability in this case. We find the opinions of AME Dr. Jeffrey
Holmes most persuasive in this regard.
The WCAB referred to the opinion of AME Dr. Holmes. Dr. Holmes’ opinion was regarded as
“the most thoughtful and well-reasoned” of all the physicians in this case. The Board quoted
from the doctor’s report, in which there is no mention of overlapping conditions. Rather, Dr.
Holmes reasoned that none of the impairments were hampering Foxworthy’s ability to
compensate for other impairments. The doctor stayed within his purview and orthopedic
expertise by commenting on how impairments might affect or aggravate the applicant’s
orthopedic condition only.

32) The Johnson Holding

 Groneberg 27

This is a case in which a physician did not hold the CVC in proper esteem. Brian
Johnson, a ranch hand, sustained injury to his back and psyche and appealed for a 100%
permanent disability rating, arguing that his impairments should have been added and not
combined using the Multiple Disabilities Table. This is a case involving two impairments, not
two injuries. Dr. Friedman (the psychiatric examiner) said that there was no overlap between the
conditions, that there was synergy, and that therefore the rating should be 100%. However, he
reached the conclusion by making a judgment call on the orthopedic condition outside his
expertise. Dr. Friedman also failed to explain how the synergy worked specifically. Opinions
must not be mere conclusions but contain medical evidence. On the other hand, Dr. Scheinberg
did not agree with the compression method in general. Therefore, his rationale was rejected. It
seems that the non-overlap of impairments is a claim made by people who just do not like
combining.
It has become my policy never to use the combined value chart because I do
believe that it artificially decreases overall impairment, which is intended to be
additive rather than subject to some decreasing formula. Therefore, I believe that
the orthopedic work restrictions do not significantly overlap with the
psychological functional impairment assessed by Dr. Friedman; they should be
assessed independently and should not be diminished by the combined value
chart.
The WCAB disagreed:
Dr. Scheinberg never opined that that there was a synergistic effect between the
orthopedic and psychiatric disabilities. In fact, he opined that there was no significant
overlap. In any event, Dr. Scheinberg's opinion is grounded in an unwavering policy to
never use the combined values chart regardless of the medical facts. Thus his opinion
can't be considered substantial evidence in that regard.

33) Use of the CVC Prevents the Pyramiding of Disabilities; However, the CVC Is Not
Limited to That Purpose.

Some people wrongly interpret the rationale behind the use of a compression formula.
They suppose that it is only useful as far as avoiding duplication is concerned. The composite
rating is less than the sum total of the ratings because compression is attributed to the deduction
of overlapping disabilities. This justification comes from the old procedures of combining
disabilities. Historically, the Combined Values Chart has its roots in the Multiple Disabilities
Table. Before giving instructions on how to compress ratings, the 1997 PDRS reads on page 1-9,
Pyramiding of disability is the unrealistic result achieved from simply adding
factors together without consideration of the scheme of relative severity of
disabilities established by the Schedule. Multiple factors of disability are
compacted (scaled down) to avoid pyramiding.
Pyramiding is the artificial stacking up of disability factors so as to build a higher rating. Rather
than each level being squarely lined up, in the shape of a cube, a portion of a level is chipped
away and then stacked, creating new levels which duplicate other levels, lining up in the shape of
a pyramid. The authors of the Schedule did not want the same work-related symptoms of
disability to be artificially separated, duplicated, and stacked, and so they came up with methods
to compress ratings downward, one of which is the MDT formula.
 Groneberg 28

Since the CVC and the MDT are both means of compressing disabilities, they both serve
as a measure against duplication and overlap. They reduce the additive sum, lest the sum be too
high as a result of duplication, whereby one disability is rated multiple times. The adding method
does not account for the schematics of the Schedule (“the relative severity of disabilities
established”) and produces an “unrealistic result.” It is not that use of a compression formula is
reserved for cases of duplication. Rather, any and all overlap is properly considered by strict
adherence to the Schedule. Because adding does not fall within the realm of the new Schedule, it
is not an appropriate way to address non-overlap. The same is true today.
The following case addresses pyramiding and the application of the old Schedule. In
Hegglin v. Workers' Comp. Appeals Bd. (1971), the Supreme Court of California isolated and
separately considered the factors of disability arising out of a single injury involving orthopedic
impairment and hepatitis resulting from the ensuing medical treatment. The Supreme Court
stated,
We hold that in cases involving multiple factors of disability caused by a single
industrial accident the Board must, in any instructions it may direct to the rating
bureau, fully describe each separate factor of disability. Any overlap of the factors
of disability thus described is adequately taken into account, and the pyramiding
of disabilities is properly avoided, by application of the multiple disabilities rating
schedule.
This was a Supreme Court decision and as such has citable authority. Here the Court noted that
strict application of the “rating schedule” would account for any overlap or pyramiding. Since
the current Schedule does not give directions to map out the factors of disability, but simply
instructs raters to use the combining formula a+b(1-a) generally, all concerns related to
duplication and overlap are considered without resorting to simple addition.
If the CVC’s purpose is only to prevent the pyramiding or duplication of disabilities, then
it should be used selectively and only for overlapping disabilities. However, this is not the case
as this is not the only purpose of the CVC. In addition to this goal, the Combined Values Chart
also provides a means to keep all composite ratings below 100% consistently. On the other hand,
the MDT was not intended to be a consistent and standard approach to combining all disabilities.
Moreover, the MDT cannot keep all composite ratings below 100% consistently on its own.
Whereas the CVC utilizes the formula a+b(1-a), the MDT utilizes the formula a+b(1-a)+0.1b, in
which b is the smaller disability rating. In the latter formula, a 10 percent portion of the smaller
disability is added to the combined total. As a result, the two ratings 90% and 90% would
combine to 108%, whereas the CVC would yield a rating of 99%. The CVC is therefore more
generally reliable in all cases.
The new Schedule is stricter with regard to the use of other methods. The authors of the
2005 PDRS intended to make the CVC applicable in nearly all situations. Since there is no
discussion on duplication and overlap in the 2005 PDRS, a finding of no overlap can no longer
be relevant in a CVC rebuttal. The new PDRS deliberately leaves out these sections on
duplication because the writers wanted the CVC to apply regardless. As the Supreme Court
noted, strict application of the schedule is enough to account for concerns of overlap.

34) The AMA Guides Directs that Unrelated Impairments Should Be Combined Using
the Combined Values Chart.
 Groneberg 29

Never does the PDRS or the AMA Guides state that overlap must be present for purposes
of the Combined Values Chart. In fact, the AMA Guides seems to say the opposite:
In the case of two significant yet unrelated conditions, each impairment rating is
calculated separately, converted or expressed as a whole person impairment, then
combined using the Combined Values Chart (p. 604).
Here the AMA directs that unrelated impairments (sharing no common features or criteria) be
formulaically combined. This refers to the nature of the injury or disfigurement, not the impact
on the activities of daily living or work activities. This is contrary to the applicant position that
only overlapping conditions should be combined.

35) Requiring Overlap Goes against the Prima Facie Presumption Covering the CVC.

Because the Rating Schedule is prima facie evidence, there can be no prerequisites for
use of the CVC. To require the existence of overlapping impairments contradicts not only the
AMA Guides, but also Labor Code §4660.1(d). By its very nature, prima facie evidence is
presumed to be accurate without the burden of conditions. The only burden of proof lies on those
who would reject the Schedule and the combined-values formula. To require overlap lays an
undue burden of proof on defendants and rejects the CVC as the default tool for combining
disabilities. In the Foxworthy case, the WCAB found that there was no overlap between the
orthopedic restrictions and the psychological impairments, and rejected the claim that there was
overlap. However, this contrary finding of no overlap was not necessary to reject the applicant’s
rebuttal of the CVC as there were multiple reasons why they overturned the WCJ’s decision.

36) The Board in the Newberry Case Dismissed the Unsubstantial Opinion That
Separate and Non-Overlapping Injuries Must Be Added.

In a recent case (2017), Jeremy Newberry suffered a cumulative trauma injury to the
knees, shoulders, and spine as a professional football player. Both the agreed medical evaluator
Dr. Lipton and neurological physician Dr. Morgenthaler believed that impairments should be
added. However, their reasoning did not convince the workers’ compensation judge, who
determined that combining the impairments would be more appropriate and found 61%
permanent disability. On appeal, the Board left the WCJ’s ruling intact and acknowledged that
the physicians had not rebutted the Combined Values Chart:
Dr. Morgenthaler reported that applicant's cognitive disorder whole person
impairment should be added rather [*47] than combined with his other whole
person impairments because each injured body part has an independent impact on
applicant's activities of daily living and there is no overlap. Dr. Morgenthaler did
not address whether applicant's whole person impairments should be added rather
than combined because the injured body parts could not be compensated by other
injured body parts . . . Moreover, Dr. Lipton did not address whether applicant's
orthopedic injured body parts have an independent impact on his activities of
daily living and there is no overlap as assumed by Dr. Morgenthaler. Accordingly,
Dr. Morgenthaler's opinion that applicant's whole person impairments should be
added rather than combined under the AMA Guides is not substantial evidence.
Here the WCAB rejected Dr. Morgenthaler’s reasoning that separate and independent disabilities
should only be added. The Board rejected his reasoning for two reasons: (1) he could not point to
 Groneberg 30

any synergy as in the Kite case, and (2) his opinion was not based on the substantial medical
evidence of AME Dr. Lipton. A mere showing of no overlap does not automatically mean that
impairments should be added, even with medical expertise. Perhaps if this case involved the
1997 PDRS and the Multiple Disabilities Table there would have been more latitude.
In this same case (Newberry), the Board affirmed that the CVC is part of the AMA
Guides and is thus prima facie evidence:
Like the Schedule For Rating Permanent Disabilities (Schedule), the AMA
Guides and included Combined Values Chart (CVC) are prima facie evidence of
whole person impairment and permanent disability . . . The CVC combines whole
person impairment for each injured body part based on a reduction formula,
which prevents pyramiding of disabilities due to addition or disability that
exceeds 100%.
Again, the rating schedule is not infallible; however, it is still applied and presumed to be true
until it has been rebutted. In order to obtain a higher rating, the applicant must make a nuanced
argument that the situation is a complex or extraordinary. It is not complex or extraordinary for
disabilities to be separate and not to have shared factors. The loss of a foot and the loss of a hand,
for example, would result in separate work-related disadvantages in walking and typing. One can
easily foresee such a situation, and yet the writers of the AMA Guides and the current PDRS
have made no exception for it. Moreover, the applicant should explain why adding is the method
of choice—why not use logarithms or the Pythagorean Theorem or calculus? And how does the
desired increase in PD accurately and precisely reflect the impairment not accounted for? What
does PD mean? These are questions which confront the applicant before rebutting a combined
values rating.
This might not be the case in matters involving the Subsequent Injury Benefits Trust
Fund (SIBTF).

37) While in the Past the Multiple Disabilities Table Was Considered More of an
Option, the Combined Values Chart Is Not Optional but Intended to Be a Legal Standard.

On the website of California’s Department of Industrial Relations, there is a page of

questions and answers dealing with the permanent disabilities rating schedule. In response to the
question “Which combining chart do I utilize for a rating under the new schedule?” the site
reads,
Use the combined values chart found in section eight of the new schedule. This is
the chart that has been adopted by regulation and applies to all ratings under the
new schedule. Do not use the combined values chart contained in the AMA
Guides.
The California website first answers that the Combined Values Chart has been “adopted by
regulation.” This means that the CVC has the approval and endorsement of legal regulation and
is a legal standard. Here the Department of Industrial Relations is employing language such as
the words “regulation” and “adopt,” which call to memory the California Code of Regulations.
As quoted earlier, 8 CCR 9805 reads:
The method for the determination of percentages of permanent disability is set
forth in the Schedule for Rating Permanent Disabilities, which has been adopted
by the Administrative Director effective January 1, 2005, and which is hereby
incorporated by reference in its entirety as though it were set forth below. The
 Groneberg 31

schedule adopts and incorporates the American Medical Association (AMA)

Guides to the Evaluation of Permanent Impairment 5th Edition.
To put it crudely, the Legislature has effectively copied and pasted the contents of the PDRS into
the law books, as well as the AMA Guides. The language of this regulation does not allow any
wiggle room of interpretation, to argue that the Combined Values Chart in Section 8 of the
Schedule is not part of this legal standard. Rather, the Schedule is “incorporated by reference in
its entirety,” referring to the entire document published by the Administrative Director.
Therefore, any and all directives to use the combining method that are found in the PDRS
instructions apply.
Secondly, on the page of questions and answers, the DIR explains that the Combined
Values Chart “applies to all ratings under the new schedule.” This means that by default, the
combining method is the method applicable to combining any and all disability ratings. This
allows little to no place for the adding method (except in instances provided in the Guides), and
again affirms that the CVC is not an optional guide. This is in contradistinction to the old
schedule and the MDT (Multiple Disabilities Table). The same website reads,
For ratings under the 1997 Permanent Disability Rating Schedule, use the
procedures for combining multiple disabilities on pages 7-12 thru 7-12 of the
1997 schedule.

38) In the Current Schedule, the Absence of Directions to Use Other Methods Implies
That the CVC Is not a Mere Guide but Is Generally Applicable to All Cases, as Opposed to
the Multiple Disabilities Table.

The procedures for using the MDT are different under the old Schedule than the
procedures for using the CVC under the new Schedule. Both rating methods formulaically
“compress” ratings to yield a less than additive total, but in the past the MDT was not generally
applied. The rater could only apply the Multiple Disabilities Table in the following situation
(page 7-12 of the 1997 PDRS):
This section is to be used when combining multiple disabilities involving different
members or systems of the body; for instance, when combining disabilities in an
arm with disabilities in the back or a leg. It is not to be used when combining two
or more disability factors occurring in one or both arms or legs.
Interestingly, the Multiple Disabilities Table could only be used in cases of separate
impairments, not overlapping; however, applicants today limit the combining method to cases of
overlap (the opposite). When impairments did overlap, an even more compressive method than
the MDT or the CVC was used according to page 7-13. The old Schedule has an even more
intricate approach to bilateral impairments, which are commonly associated with synergy.
The old Schedule, established by Administrative Director Casey Young under Governor
Pete Wilson, contains thorough explanations of pyramiding, duplication, and overlap from pages
1-9 to 1-11. The circumstances determine which method to select in combining disability
ratings—the MDT, the single extremity method, or the bilateral method. However, these
explanations, rules, and procedures are conspicuously and deliberately left out in the 2005
Schedule. The 2005 PDRS does not mention overlapping disabilities because this concern no
longer bears on the issue of combining. Ever since the new Schedule has been mandated, the
CVC has been the primary means of combining disabilities. In combining the impairments for
each injury, raters and judges do not need to check the appropriateness of the standard combining
 Groneberg 32

chart by determining overlap or ability to compensate bilaterally or with another body part.
Under the old Schedule, this was necessary. However, the new system has deemed the Combined
Values Chart a suitable, uniform, and one-size-fit-all standard for combining disabilities
regardless of the circumstances.