ADJ9775364 — California WCAB decision

What the panel ordered

Findings of Fact, Award, Order, and Opinion on Decision issued on February 25, 2021, rescinded; matter returned to trial level for further proceedings

Petition for Reconsideration granted to study factual and legal issues; decision after reconsideration rescinds prior award and returns matter to trial level for further proceedings

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Permanent disability ratingRemandedbilateral knees · right knee · left knee

The prior award of 51% permanent disability was reopened and applicant's present disability was found to be 74% after apportionment and application of Kite; however, the Appeals Board found the medical evidence insufficient to support the award and rescinded it, returning the matter for further proceedings.

From the decision · page 1The WCJ found, in pertinent part, that applicant sustained industrial cumulative injury to the bilateral knees while working as a plumber through February 5, 2014. The WCJ further found that parties previously agreed to stipulations at 51% permanent disability, which reflected a compromised rating on the issues of apportionment and rebuttal of the Combined Values Chart (CVC). The WCJ found good cause to reopen the prior stipulation and found that applicant's present disability is 74% after apportionment and after application of Kite. (East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.).)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant sustained industrial cumulative injury to bilateral knees through February 5, 2014

Favours Applicant prevailed

This established the basis for the permanent disability rating and reopening of the prior stipulation

From the decision · page 1The WCJ found, in pertinent part, that applicant sustained industrial cumulative injury to the bilateral knees while working as a plumber through February 5, 2014. The WCJ further found that parties previously agreed to stipulations at 51% permanent disability, which reflected a compromised rating on the issues of apportionment and rebuttal of the Combined Values Chart (CVC). The WCJ found good cause to reopen the prior stipulation and found that applicant's present disability is 74% after apportionment and after application of Kite. (East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.).)

Parties stipulated to 51% permanent disability based on AME's impairment ratings and apportionment

Favours neutral

This formed the prior agreed disability rating subject to reopening

From the decision · page 1The WCJ found, in pertinent part, that applicant sustained industrial cumulative injury to the bilateral knees while working as a plumber through February 5, 2014. The WCJ further found that parties previously agreed to stipulations at 51% permanent disability, which reflected a compromised rating on the issues of apportionment and rebuttal of the Combined Values Chart (CVC). The WCJ found good cause to reopen the prior stipulation and found that applicant's present disability is 74% after apportionment and after application of Kite. (East Bay Municipal Utility District v. Workers' Compensation Appeals Board (Kite) (2013) 78 Cal.Comp.Cases 213 (writ den.).)

AME Daniel Ovadia found worsening right knee impairment and applied Kite to rate disability at 74%

Favours Applicant prevailed

This was the basis for the WCJ's rating and the dispute over the correct rating

From the decision · page 3warranted a rating of 20% WPI. (Applicant's Exhibit 3, Deposition of AME Daniel Ovadia, M.D., April 30, 2020, p. 14, lines 3-14.) The AME again concluded, without explanation, that Kite should apply in this case. (Id. at p. 16, lines 2-3.)

Medical evidence was found insufficient to support the award and the QME's conclusory opinions lacked substantial evidence to rebut the Combined Values Chart

Favours Defendant prevailed

This led to the rescission of the award and remand for further proceedings

From the decision · page 5(Id. at *13.) Here the QME has conducted no significant analysis to justify rebuttal of the CVC. The

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERelied upon

Found chondromalacia in both knees with 22% whole-person impairment (WPI) to left knee and 12% WPI to right knee; found 15% non-industrial apportionment; concluded synergistic effect of knee impairments warranting rebuttal of the Combined Values Chart (CVC) and applied Kite to rate overall knee disability at 34% WPI instead of 31%. Later found right knee chondromalacia worsened with 20% WPI and applied Kite again.

AME's medical evaluations and conclusions on impairment and apportionment were central to the disability rating and the dispute over the application of Kite and the Combined Values Chart.

From the decision · page 2FACTS Applicant sustained an admitted cumulative injury through 2014 to his bilateral knees while working as a plumber. (Minutes of Hearing and Summary of Evidence, November 18, 2020, p. 2, lines 3-5.) The parties entered stipulations with an award issuing on November 2, 2017. (Defendant's Exhibit B, Stipulations with Request for Award, November 2, 2017.) The parties stipulated that applicant's permanent disability rated to 51%. (Id. at p. 6.) The stipulations were based upon the reporting of the agreed medical evaluator (AME) who found chondromalacia and assigned 22% whole-person impairment (WPI) to the left knee and 12% WPI to the right knee. (Report of AME Daniel Ovadia, M.D., March 22, 2016, p. 6.)2 The AME also found 15% non-industrial apportionment. (Ibid.) In supplemental reporting, the AME concluded that applicant's knee impairments had a synergistic effect, which warranted rebuttal of the combined values chart (CVC). (Report of AME Daniel Ovadia, M.D., June 1, 2016, p. 1.) Dr. Ovadia stated: Recall that the applicant has significant dominantly post-traumatic (cumulative trauma) arthritis in both of his knees. Utilizing a strict interpretation of the AMA Guides, I combined these two values (left knee -22% WPI; right knee - 12% WPI) and arrived at a 31% WPI.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 4660, 4660.1; Hoch, Andrea, Schedule for Rating Permanent Disabilities (2005); AMA Guides, 5th Edition (2001)

Permanent Disability Rating Schedule (PDRS) and Combined Values Chart (CVC) under AMA Guides

The CVC values are derived from a formula to combine impairments, but may be rebutted where there is no overlap or where overlap amplifies impact on activities of daily living (ADLs).

From the decision · page 4One element of the PDRS is the Combined Values Chart (CVC). The purpose of the CVC is described within the PDRS, which cites to the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (2001) (AMA Guides), which is adopted and incorporated for purposes of rating permanent disability under the 2005 PDRS. (Lab. Code, § 4660, 4660.1; Hoch, Andrea, Schedule for Rating Permanent Disabilities, (2005), p. 1-11; AMA Guides, pp. 9-10.) In sum, impairment under the AMA Guides is designed to reflect how a disability affects a person's activities of daily living ("ADLs") (self-care, communication, physical activity, sensory function, non- specialized hand activities, travel, sex, and sleep). (AMA Guides, pp. 2-9.) CVC "values are derived from the formula A + B(1-A) = combined value of A and B, where A and B are the decimal equivalents of the impairment ratings." (AMA Guides, p. 604.)5

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Requirement for medical opinions to be based on reasonable medical probability and supported by reasoning

Medical opinions must not be speculative and must be based on adequate examination and history with reasoning; inadequate foundation may lead to rejection of conclusions.

From the decision · page 4To constitute substantial evidence "... a medical opinion must be framed in terms of

Lab. Code, §§ 4663, 5705

Burden of proof on apportionment and requirement for substantial evidence

Defendant carries burden of proof on apportionment which must address causation and be supported by substantial evidence.

From the decision · page 4Section 4663 requires any report addressing permanent disability to address apportionment

Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473; McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117

Appeals Board duty to base decisions on admitted evidence and to develop record when insufficient

Decisions must be based on admitted evidence; Board must develop record if evidence is insufficient to ensure substantial justice.

From the decision · page 3DISCUSSION Decisions of the Appeals Board "must be based on admitted evidence in the record." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476-478 (Appeals Board en banc).) As required by section 5313 and explained in Hamilton, "... the WCJ is charged with the responsibility of referring to the evidence in the opinion on decision, and of clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at p. 475.) The Appeals Board has a duty to further develop the record where there is insufficient evidence on an issue. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261].) The Appeals Board has a constitutional mandate to "ensure substantial justice in all cases." (Kuykendall v. Workers' Comp. Appeals Bd. (2000) 79

ADJ9775364 · December 9, 2025

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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