Vigil, Sammy

Applicant Sammy Vigil, a maintenance painter for the County of Kern, claimed injury to his hips and back, with QME Dr. Peter Newton assigning 15% WPI to each hip and 7% WPI to the lumbar spine. The WCJ found 68% PD by adding (rather than combining via CVC) the bilateral hip impairments under Kite and declined apportionment to the hips under Hikida, reasoning the disability resulted from hip replacement surgery. The Appeals Board, sitting En Banc, held that the CVC may be rebutted and impairments added where an applicant establishes the ADL impact of each impairment and either (a) no overlap between effects on ADLs exists, or (b) overlap exists but increases/amplifies the impact on overlapping ADLs. The Board found Dr. Newton's opinion failed to constitute substantial evidence because it contained no analysis of ADLs to support adding the hip impairments. In a separate panel decision, the Board also found the WCJ misapplied Hikida (since the surgery was successful) but concluded defendant still failed its burden of proving apportionment because Dr. Newton's apportionment opinion was conclusory. The matter was rescinded and remanded for further development of the record.