MED-LEGAL REPORT

ByArtJohnson, Esq.

Combined Value Chart v. Multiple Disability Table

The Combined Value Chan has been imposed on California workers as part Df ihe

SB891) implementation of the AMA Guides fur disability rating purposes. The following

concepts were applied in formulating fie Combined ValueChart(CVC);

1) The AMA Guides rale "impairment" (loss of the body to (unction), not "disability"

doss of the ability to work). (Guides, p. 4-5)

2) ■'Tula]" Impairment is death, One is li)0% impaired when me body is dead. (Guides,

p. 5)

3) "Closely approaching death" (see page 5 of the (inkles) is a ')5%, impairment rating,

(Guides, p. 5)

■i) When multiple "impairments'1 to diOereni parts of the body are combined, the \MA

Guides has devised [he CVC to make sure no TO! rating exceeds 100%. (Guides, p. 9)

Examples:

A) 90% plus 90% equals 99% on the CYC. (90% is brain dead. Total paralysis is 90%.

Thus, someone who is brain dead and paralyzed is W';> Impaired".

B) 50% + 50% - 75% + 50% = 88% + 50% - 9496 + 5096 - 97% + 5096 - 99%

Thus. si\ 5096 Will ratings = 99% Will on the CYC

Actual example of six "impairments" combined (in (he CVC:

1) Severe asthma- 50%.

2) Complete bowel Incontinence rates 35%.

3) Complete loss of urine control rates 50%.

4) Uncontrolled epileptic seizures = -i5%.

5) Al/iieiiuers requiring complete dependence on others = 50%.

d) Amputated leg at hip = 40%.

Thus, these six Impairments when combined for one Individual would NOT total 99%

WP1 on the CYC.

Previously, under the "old" disability schedule, we bad the "Multiple Disability Table'

(MDT). The MDT did in fuel "compress" ratings, bill was far more appropriate in

describing disability (as contrasted to impairment! for the following reasons:

I) The Multiple Disability Table (MDT) formula was based on old schedule "disability

ratings. Disability ratings are far more realistic in describing loss ofworking capacm

than "impairment" ratings.

I) The MDT also, as part of the formula, added back into the computation 10% of the

smaller rating. The CVC does not do this.

3) Under the old rating schedule MDT:

a) 50% + 50% = 80%

b) 50% + 50% + 50% = 95%

c) 50% + 50% + 50% + 50% = 102.5%

One can actually reach 100% total on ihe MOT far more realistically than mi the CYC,

where six 5096 ratings come to 99%.

•i) The MDT also Included paragraph 6 which states:

■■The result obtained by the (MDT) calculation is not necessarily to be adopted as

the final rating for the combined disabilities but should serve as a guide only. The

final rating will he the result of consideration of the entire picture of disability and

diminished ablllt} to compete in an open labor market."

Paragraph 6 thus allowed evidence of the actual combined disability, and if through

vocational evidence or thorough medical evidence of synergy, one could show actual

disability greater than that measured by the MDT. one would receive a disability rating

higher than that computed under the MDT formula. The MDT was slated to he a "guide

only". (Note: There is no administrative or statutory reason why it should not be

hehl thai the combined value chart is not simply a "guide" and not thus an Inevitable

mathematical computation that must lie followed in every case, when the actual tads

as to work "disability" are differeni than the fails as lo the AMA measurement of

"impairment".)

Comparison ofAMA Combined Value Cliari with old Schedule

The old schedule took into account that some disabilities have a "synergistic effect"

when combined. For example, under the old schedule:

1) Loss of one eye was 25%. loss of two eyes was 100%.

2) Total loss of grip of major hand was 40%. Total loss of grip of minor hand was 36%.

Total loss of grip of both hands was 85%.

S) Immobility of one hip |oinlwa8 45%, both hip Joints 100%.

Note: liuler Ihe CVC, these rating mines are not given a synergistic effect, but

rather are "compressed" on the CVC lofar lower mines.

Analysis nl Combined Value Chart Application:

A. Rebuttal:

The Costa case holds thai the rating schedule is onlj "prinia facie evidence" and can be

rebutted by appropriate presentation of rebuttal evidence.

There is no reason why the entire rating schedule needs tu be rebutted.

One could choose, for example, lo accept the AMA ratings for a final orthopedic

disability combined with a psychiatric (iAF. and rebut the application only of the

Combined Value Chart as to that combination. Thus, a 3096 orthopedic spine rating

plusfl30% psych rating on die Combined Value Chart would be 51%. Ifonecmild

prove by vocational evidence that there was not a compressive effect lo these two

disabilities, but rather an additive or a synergislic effect, adding the two together would

produce 60%. If by synergy, one could show that the person was totally disabled

because one could not do physical work and one could also not do mental work, then

the rating should he 100%. (See I..C. 4662. last sentence.)

it. New rating schedule "disconnect" analysis:

The AMA Guides provides the Combined Value Chart as an appendix to the AMA (iuides

and requires that multiple "impairment" ratings, whole person impairments, be

combined on the Combined Value Chart However, the 2005 permanent disability ratiqg

schedule does not do that. On page I -11 of the new rating schedule it stales:

All impairments are converted to the wholeperson mile, adjusted, andthen

combinedto determine afinaloverall disability rating."

- Continued on Page 20

CAAAnients June 2008

MED-LEGAL REPORT

- Continued from Pegs IS

There is a subtle shift of intellectual honesty going on here. When ratings are converted

per the rating schedule by adjustment for age, occupation, and loss ofDFBG, the

"impiunneiiis" becomt: "disability" ratings. The Combined Value Chart provides

iIku "impairments" are to be combined on the CVC The rating schedule, Instead of

combining "impairments", combines "disabilities" on a charl thai is supposed to

combine impairments. The rating schedule uses the Combined Value Chart lo combine

multiple- disutilities niter adjustment. The Combined Value Chart was designed to

combine impairments, before any modifications occurred Uirough any particular rating

system.

If the California rating system does not use the Combined Value Chart as the Guides

intended, bul instead compresses "disabilities", rather than '■impairments", [here is

no reason why we ;ts attorneys cannot use a different methodology than mat described

in the Guides, since the rating schedule devised by the A.D. does not follow [he Guides

methodology in utilizing the CVC.

C. Note also page 10 of the AMA Guides which stales:

"A scientificformula has not been established lo indicate the best way to

combine multiple impairments. Given the diversity ofimpairments and

gFeat variability inherent in combining multiple Impairments, it is difficult

to establish a formula that accounts for all situations. The combination

ofsome impairments conld decrease overallfunctioning more than suggested

by just adding the impairment ratingsfor the separate impairments

(e.g. blindness and inability lo use both hands). When other multiple

impairments are combined, a less than additive approach may be more

appropriate. Slates a/souse different techniques when combining impairments.

Many Workers' Compensation statues contain provisions that combine

impairments toproduce a summary rating that is mure than additive.

Other options are to combine (add. subtract', or multiply) multiple impairments

based upon the extent lo which they affect an individual's ability to perform

activities ofdaily living. The current addition has retained the same Combined

Values Chart, since it has become the standardof'practice in manyjurisdictions.

Other approaches, when published in scientific fwer-reviewedliterature, will be

evaluated forfuture additions."

Thus, the AMA Guides itself indicates there are multiple approaches thai can be used,

ami the Guides itself on page 10 suggests that there may be an additive or syncrgislic

elfeci to some combined multiple Impairments, rather than a compressive effect.

Evidence will be needed to establish thai the combined Impairments have a synerglstic

effect as lo disability, rather than a compressive effect.

Note that the Guides itself su^esls that there are "other options" to combine

disabilities, and these options include addition, subtraction, and multiplication. Under

the Combined Value Chan, two plus two equals three. The Guides itself suggests that

two plus two may really be four, or two plus two could be five, if ihere is a synergislic

effect.

D. Methodologies for rebutting the combined value churl:

1) Medical evidence: Utilize the physician lo provide medical evidence (hat there is

iiot a ■'compressive effect" when multiple disabilities are combined. Rather.

there is at least an "additive", and probably a "syncrgistic" effect. In appropriate

cases, where (hat is the actual fact, the physician should not hesitate to so state.

(For example, under (he AMA, legal blindness in one eye. is 10% to 2l)%. Both

eyes is 50% to 61%. Under the old schedule, it would lie 100%. A physician may

find a synergistic effect to both eyes being blind.)

2) Vocational evidence: Use vocational evidence to prove what we used to prove

under paragraph 6 of the MDT, that the complete picture of combined multiple

disabilities and the complete picture of loss of earning capacity, produces a

iiitin» that is greater than produced by the Combined Value chart. Have die

vocational expert testify that he is not rebutting the AMA Guides Impairment

formulation, by only the compressive effect of the combined value charl and thai

in actual fact there is no compressive effeci to the combined "impairments" when

they are translated into combined "disability".

3) Empirical studies: The latest evidence from the administrative director is that

the disabilities wiih the lowest return to work rates are those where there are

multiple disabilities involved, two or more body pails. Since the new rating

schedule is fundamentally based now on the standard of "diminished future

earning capacity", if the empirical studies by the administrative director actually

show that combined disabilities have a synerglstic effed on a person's loss of

ability to work and cause a greater diminished future earning capacity than simply

adding the disabilities, then it would behoove us to use the administrative

director's own studies to show that combined ratings should not be compressed

under the CVC, but they should be added, or they should be combined in a

synergislic effect.

Analysis

I} Practical synergistic examples:

There are many examples of Impairments thai have a synergislic elfeci. The most

common of those that are found in the "old" pre-AMA rating schedule:

a) Loss of sighi in one eye is handicapping. Loss of sight in boih eyes is totally d

isablmg for any activity involving sight.

b) Loss of one baud is severely handicapping Loss of both hands is totally

handicapping for any band usage activity.

c) Loss of one leg is disabling. Loss of both legs or conliiiemenl to a wheelchair

is totally disabling for any work activity involving ambitlalkm.

d) The Guides on page 10 again suggest that some impairments, e.g. blindness

and inability lo use both hands, may ha\e more than an additive effect on

the functionality of the claimant. However, under the Combined Value Chart,

total blindness is 75% to 85% whole person impairment Amputation of

both arms is a 75%. impairment, 75% phis 80% is 95% Combined Value Charl

disability. Probably not entirely realistic for someone who has no arms and is

total blind (might be hard lo use a cane).

2) Most of us have considered DFKC analysts from a vocational expert as

being utilixing lo rebut the permanent disability percentage derived from the

AMA Guides calculations. I would suggest that an additive or synerglstic analysis

may he just as accurate. For those people who do return to work, but who have

far greater combined effeci on their functionality lhan expressed in (he CVC, when

there are multiple disabilities, having a vocational expert produce evidence

lo rebut the Combined Value Chart would show ihc actual combined disability.

The vocational expert can show the effect of die combined disabilities on DFEC,

being a synergislic effec! rather lhan a compres.sive effeci. Particularly

when the methodology used by the administrative director in formulating

combined disabilities is not the melhodology of the AMA Guides, and thus has

no statutory authority whatsoever under IX -iooO. ii should be appropriate for

us to use a more factually realistic methodology If the true effect of the combined

disabilities is thai there is a synergistic or additive effect, then showing this on a

case by case analysis should be "substantial evidence" lo rebut the use of the CVC

in producing the final rating.

CAAAmenlsJune 2008

3) Finally, when you have a case where

[he person is not able io work ai

all, ami you arc tooktng at total

(Usability, when a 75% impairment

plus a 758 impairment, when

placed on the Combined VahiL' Chan

computes to 94% WH, but thai when

looked at realistically combined

ilisahilit) is total, (hat "impairment"

rating makes no sense from u real

world standpoint li may then be

very important to show the Court

thai l.C- 4662 provides that "in all

cases" (other than (hose conclusively

total disabilities presumed under

sections (a) through (d) of 4662),

that tote! disability shall be proven

"according to the (act". l..c. 4662

does not involve consideration of

"impairment", but rather of "total

disability**. If then1 are multiple

Impairments, thejudge is the person

who makes the final calculation as

to how those multiple Impairments

combine to translate Into actual work

disability H is up to yon to produce

the rebuttal evidence for thejudgfi

It) utilize in that compulation. If

your client is really totally disabled,

notwithstanding Ihe Combined Value

Chart calculation, yet the evidence

togetfier to ream the CVC and prove

lite lotalilj of lite disability to the

Judge. The Judges really do not want

to give a blind man with no arms

95%. ®

Bryan Barber, MD*— Orthopaedic Surgeon

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" Accurate as possible considering AMA Guides' inherent contradictions, omissions {i.e.. clinical syndromes, etc.)

Labrinthine'Tables/Figures',1 etc. CEDARON Software used (also used by State Compensation Insurance Fund-SCIF)