KITE IS RUBBISH; HOW TO THROW OUT THE TRASH
The Third District Court of Appeal is begging to overturn Kite. Now is the time to send the right case to them and, if necessary, to the California Supreme Court.
The sooner Kite becomes roadkill, the better. Kite is a creeping metastasis. The faster it spreads, the faster a tsunami of 100% cases arrives (see the end of this article), and the faster work comp premiums go sky high—driving employers out of California. [Trust me, I saw this movie before when premiums doubled and tripled between 2000 and 2004.]
Under Kite, doctors, judges, and the WCAB say impairments do not need to be combined—as indicated by the AMA Guides and mandated by the 2005 Permanent Disability Rating Schedule—but can be added to produce higher impairment, and higher dollars, than the Legislature intended. No mention is made of why the Combined Values Chart and the Multiple Disabilities Table were created—TO AVOID DUPLICATION OF IMPAIRMENT AND DISABILITY.
I will leave it to you to determine if Kite represents a misreading and a disregard of the Guides and the PDRS. I will leave it to you to determine if the goal of the doctor, judge, and WCAB in Kite was to create new law, rather than interpret existing law.
In a powerful footnote in Dept. of Corrections and Rehab v WCAB and Dean Fitzpatrick, 27 Cal.App.5th 607, footnote 14 (Third District Ct. of Appeal, 2018), the Third District Court of Appeal stated:
Although we do not consider the Board's new theory, we would be remiss in failing to comment on the fact that the Board attempted to support its position by relying on the schedule for rating permanent disabilities dated April 1997 (1997 Schedule), relying on language not existent in the 2005 Schedule, and cases predating the 2004 legislative amendments and the 2005 Schedule for the proposition that "[j]udicial decisions agreed that combining factors of disability by addition was appropriate if it provided a more valid measure, and it was expected that the [Board] would take into account the conclusions of the examining physician and would exercise sound discretion in rating permanent disability."
The 2005 Schedule differs substantially from the 1997 Schedule, and appropriately so given the 2004 amendments and the Legislature's directive.
(Emphasis added.) Id. at 624, fn. 14.
Essentially, the Appellate Court implied that the citations and arguments made by the Board were bogus. Even a first-year law student would know that citing out-of-date law, and cases based thereon, is erroneous. The relevant law is the law in effect at the time of the dispute. As even a first-year law student would know this, I leave it to your judgment why the Board cited inapplicable law and cases.
The Third District threw down a challenge: send these bogus arguments to us as a direct issue in a case. The California Supreme Court denied review of Fitzpatrick. It also denied a request for depublication of the Fitzpatrick decision. I believe that means the California Supreme Court is ready to put a stake through Kite as well.
Why? Because the AMA Guides, and the 2005 PDRS, contain the following quotes which directly address the Kite issue:
From the AMA Guides:
1. “A 90% to 100% Whole Person Impairment indicates a very severe organ or body system impairment requiring the individual to be fully dependent on others for self-care, APPROACHING DEATH.” P. 5.
2. “The Combined Values Chart (p. 604) was designed to enable the physician to account for the effects of multiple impairments with a summary value. A standard formula was used to ensure that regardless of the number of impairments, the summary value would not exceed 100% of the whole person.” P. 9.
[Simply put, 100% means almost dead or dead. You cannot be more impaired than being dead.]
Do you know what Christopher Reeve’s WPI% rating was under the Guides, after he broke his neck and was paralyzed from the neck down? 92 – 93% WPI.
From the 2005 Permanent Disability Rating Schedule:
1. Section 8—Combined Values Chart: “Use this chart to combine two or more impairments, or two or more disabilities.” [NOTE: This language mandates use of the chart.]
2. “The calculation of a permanent disability rating is initially based on an evaluating physician’s impairment rating, in accordance with the medical evaluation protocols and rating procedures set forth in the AMA Guides [i.e, use of the Combined Values Chart to avoid duplication]…which is hereby incorporated by reference. (PP. 1-2.)
3. “Multiple impairments MUST BE COMBINED IN A PRESCRIBED MANNER TO PRODUCE A FINAL OVERALL RATING.” (PP. 1-5.)
a. The prescribed manner is: Section 8—Combined Values Chart: “Use this chart to combine two or more impairments, or two or more disabilities.”
Kite also shows a complete lack of understanding of the theory of the Combined Values Chart in the Guides. Its purpose is to avoid duplication of impairment.
Here is the theory:
A person starts at a 100% Whole Person. Once he has his first loss of WPI%, then he has less than 100% WPI left. If that person’s initial loss is a 10% WPI (impairment), then, once he gets that amount, the amount of him left is 90% of the Whole Person (100 – 10 = 90). If he then then gets another 10% loss, when that percentage is multiplied by the 90% Whole Person he has left, he gets 9% WPI. (90% WPI x 10% = 9% WPI). Each additional impairment has less impact on the overall impairment because there is less of the person’s Whole Person to impair.
This is why Christopher Reeve, who suffered a corticospinal impairment from a broken neck with loss of use of arms, legs, and other bodily functions, rates out at 92 or 93% WPI.
The purpose of the Combined Values Chart and Multiple Disabilities Table is to avoid duplication of impairments and disabilities.
KITE CREATES DUPLICATION OF IMPAIRMENTS
Let me give you a concrete example.
I recently reviewed a case. 4 doctors reported. The orthopedist used Kite to add his impairment ratings for 6 body parts. After being converted to PD and added, they came out to 88% PD. The correct PD ratings, when combined, came out to 62% PD.
The orthopedist then did a “double Kite.” He said his impairments should be added to the impairments given by three other specialists. When those impairments were converted to PD and added, they came to 120% PD: $1.4 million. [Show me where 120% PD appears in the Labor Code.] When combined, the PD came out to 80.0% PD = $218,000. So, by doing a Kite and a double Kite, the orthopedist increased the value of the case from $218,000 to $1.4 million—AN INCREASE OF $1.2 MILLION. Not bad based on 40 pages of medical report. (That is $30,000 per page!)
Of course, no mention was ever made of duplication of impairments or disabilities.
You can see how an Applicant attorney could use this technique to turn a large percent of his cases into 100%, 125%, 175% PD cases, or more. Think about the attorney fees he would get from that. Now you know what will happen.
And, if impairments and disabilities can be added, why can’t they be multiplied based on the alleged “synergy” between them? How soon until a doctor says, “Well, the second impairment makes his overall impairment THREE TIMES worse than his initial impairment due to the 'synergy' between them.”? And on and on and on.
Let’s put a stake through the heart of the Kite vampire now!
Phil Walker is a national expert on the AMA Guides (5th Edition), author of The AMA Guides Made Simple, national expert witness on work comp, and California work comp defense lawyer. He has reviewed and analyzed over 3,000 California AMA medical reports. He helps make attorneys and claims professionals heroes by getting correct AMA ratings, settling, and winning cases. He provides FREE TRAININGS (IN PERSON OR BY ZOOM) ON AMA GUIDES, APPORTIONMENT, AND CAUSATION. (He provides attendees with sample briefs, motions, and depo outlines.) As he showed at the WCRC, his trainings are hilarious! To schedule one, please email phil@askphilwalker.com. (He is almost fully scheduled through March 2022.)
For more info on this topic, please see this superb article by Peter Golden, Esq.