Grinberg: WCAB Rejects Psych Kite Again

Friday, March 25, 2022 | 0

This post is good news: Another successful decision reached, thanks to the efforts of the attorneys at State Compensation Insurance Fund.

Gregory Grinberg

Before we get into the meat of the issue, I would like to voice an additional objection to this whole “adding instead of combining” disabilities trend. When I was just knee-high to a grasshopper, I was full of opportunity and promise, just like everyone else. Potential was aplenty. It seems truly unfair now that the Workers' Compensation Appeals Board seems to be inclined to impose upon us the very thing we hoped to avoid by going to law school: math.

Accordingly, I hope we can return to the magic of the combined values chart rather than the pain of the adding of impairments.

The panel decision is Martinez v. Sousa Tire Sevice, insured by SCIF.  Applicant’s impairments on an accepted case were rated as 77% PD for orthopedic injuries, 62% for complex regional pain syndrome, and another 26% PD for psychiatric disability. While the orthopedic and CRPS were combined to yield 91% PD, the psychiatric impairment was added to reach 100%. 

Had the 26% PD for the psych been combined with the 91% for the orthopedic and CRPS, of course, the result would have been 98%. 

Now, you might be thinking that there isn’t much difference between 98% and 100%, but I could not possibly disagree with you more. While 100% includes a life pension at the TD rate, 98% is significantly less, or at least it can be, depending on the circumstances.

The psychiatric treating physician wrote a report expressing support for adding the psychiatric impairment to the orthopedic impairments, “given that the psychiatric impairment does not overlap with his orthopedic impairment.” The panel rejected this opinion.

Distinguishing the Kite decision, the panel noted that in Kite, the two body parts being “added” rather than combined were both within the reporting physician’s expertise, and the two impairments caused a “synergistic” effect, justifying the addition. The panel continued: “[i]n contrast, here one specialist is suggesting that we add impairments found by her in her own specialty to impairments in a completely different body system found by a different specialist.” The case was sent down to the trial level for a new finding of PD and attorney fees.

Does this reasoning sound familiar? It will to my most learned and diligent readers. This was the same logic used to reject adding impairments in the panel decision of Bradley v. State of California. 

Certainly good news for the employer in this case, but on a broader scale, this should encourage us to challenge those Kite ratings and not shy away from litigating the issues. 

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.