Recently, a few cases have been remanded back to the trial level for development of the record on questions related to rebuttal of the Combined Values Chart (CVC) in the context of Kite and/or Vigil. It should be noted that Vigil was decided on June 10, 2024.

December 6, 2024

In Avakian v. City of Baldwin Park, 2024 Cal. Wrk. Comp. P.D. LEXIS 452, there were multiple medical-legal specialists. Some of the physicians opined it was more accurate to add impairments based on synergism. One physician expressed opinions regarding synergism, but did not expressly endorse the additive method. Based on the overall record, the trial judge found applicant was permanently and totally disabled. There was also vocational rehabilitation expert opinion that applicant was not feasible for a return to the open labor market. Defendant filed for reconsideration and the case was remanded back to the trial level for further development of the record. Further inquiries on remand included, but were not limited to, the existence/non-existence of overlap. The en banc Vigil decision had been decided after the court granted reconsideration, and the court observed that the physicians had focused on overlapping body parts rather than activities of daily living (ADLs). This case was “analytically incomplete” and further discovery was necessary.

December 31, 2024

In Anaya v. Scotia Tool & Machine, Inc., 2024 Cal. Wrk. Comp. P.D. LEXIS 471, the applicant presented medical and vocational rehabilitation evidence in support of permanent and total disability. From a medical standpoint, there was reporting and testimony in support of an additive approach for impairments. However, on reconsideration, it was concluded that the opinions expressed did not constitute substantial medical evidence. The physician failed to take a complete history of the impacts of applicant’s injuries on ADLs and address the question of overlap versus synergistic effect. The vocational rehabilitation evidence of both parties was also found lacking and not substantial evidence. Since the applicant presented a credible argument that he may be precluded from work the case was remanded for further development of the record.

January 7, 2025

In Salerno v. Cal Fire, 2025 Cal. Wrk. Comp. P.D. LEXIS 35, an orthopedist took a history of impact on applicant’s ADLs, the internist did not. The internist considered the internal problems separate and distinct from the orthopedic problems, which the orthopedist later agreed with in deposition. Both physicians agreed the additive approach was more accurate for assessing permanent impairment. The applicant argued for permanent, total disability. Awards were issued for two dates of injury: 83% and 13%. Applicant sought reconsideration contending the orthopedic impairment should have been added to the internal medicine impairment. On reconsideration, the court found that none of the physicians analyzed the impact of ADLs and whether there was overlap. Their focus was on body systems. The court held the matter proceeded to trial on an incorrect legal theory and the question of whether the internal and orthopedic conditions were separate was irrelevant to rebutting the CVC. The matter was remanded to give parties opportunity to litigate the issue using correct legal standard for CVC rebuttal. The court noted:

“Given our very recent holding in Vigil, which clarified the legal standard for rebutting the CVC table, and given that the parties litigated this issue using an incorrect legal standard, the prudent course of action is to return this matter to the trial level for further development of the record. Specifically, the parties need to address the appropriate standard for CVC rebuttal as outlined in Vigil, supra.”

In this practitioner’s experience, multiple depositions of medical-legal physicians have revealed varying degrees of understanding, or none, of the Vigil decision. Additional discovery in the form of a re-evaluation primarily for the purpose of taking a new history of the applicant in the context of ADLs is the norm. The legal standard set forth in Vigil is relatively recent and the full extent of its impact will take some time to work its way through the system. No matter which side of the fence you are on, additional discovery including supplemental reporting, depositions and re-evaluations should be expected for quite some time.