In April 2017, the California 3rd District Court of Appeals issued a favorable ruling regarding apportionment for genetic factors.
City of Jackson v. WCAB (Christopher Rice)
Rice was employed by the City of Jackson for less than 5 years as a full-time police officer. He sustained injury to his neck during cumulative trauma period through April 22, 2009.
Before undergoing neck surgery, the Qualified Medical Examiner (QME) diagnosed cervical radiculopathy and cervical degenerative disc disease (DDD). In subsequent post-surgical reports, she discussed disability and apportionment, ultimately opining that 51% of the condition was caused by “heredity, genomics, and other personal history factors,” and the remaining 49% was caused by work-related injuries and prior injuries.
The QME’s conclusions were based on medical studies demonstrating that 73% to 75% of every degenerative disc disease is related to genetics. There was no need for specific genetic testing to find the relevant genes. Literature supported the causation of degenerative disc disease in all individuals simply based on the presence of the disease itself.
WCAB found the QME’s conclusions were not substantial evidence inasmuch as they were based on “impermissible immutable factors.” The WCAB awarded the Applicant unapportioned disability.
However, the Court of Appeals found the QME persuasive, particularly given that the doctor’s conclusions incorporated significant, unrebutted published medical literature. After noting that there were a number of post-SB 899 cases upholding apportionment to non-industrial pathological degenerative changes, the DCA concluded there was substantial medical evidence to justify “heritability and genetics” and “genetic issues” as a factor meriting apportionment. The court specifically vetoed the WCAB’s reference to “impermissible immutable factors”, stating:
…Precluding apportionment based on ‘impermissible immutable factors’ would preclude apportionment based on the very factors that the legislation now permits, i.e., apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.
Hesitations about the Decision
Even if the California Supreme Court hears the case and upholds the Appeals Court decision, (which is certainly no guarantee) there are still pitfalls inherent in this defense.
For example, there will undoubtedly be arguments that apportionment found in this case violates GINA (Genetic Information Nondiscrimination Act) of 2008, which prohibits discrimination in health insurance and employment on the basis of genetic information. This could limit our ability to inquire about family diseases or disorders, or to request genetic information or testing.
Rice appears to distinguish apportionment based on an actual medical condition that a worker has as established by the medical evidence, rather than establishing apportionment to a risk factor. Prior cases have established risk factors are an impermissible apportionment consideration. A “risk factor” is considered a statistical probability that may increase the possibility of a particular kind of injury or condition, and it is not considered evidence that the factor caused a portion of the individual’s disability. Risk of injury is not pathology and cause of disability. How the studies frame the pathology discussion can affect how doctors may diagnose and analyze the issue of genetics. It might be splitting hairs, but the Rice decision will likely lead to such debates.
All in all, the case law as it currently stands may change, and it may open up the possibility of apportionment to genetics. Time – and case law – will tell. In the meantime, defendants everywhere should be insisting that all medical evaluators research and consider genetics when rendering an apportionment determination.
Sana Nasser is an associate attorney at Bradford & Barthel’s Sacramento location. Before joining B&B, Ms. Nasser practiced civil litigation, corporate law and workers’ compensation defense. Since joining B&B, Sana’s primary area of practice has been workers’ compensation defense. She can be reached at firstname.lastname@example.org or (916) 569-0790.
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