Fresno, Bakersfield, Stockton, Bishop,
Oakland, Sacramento, Salinas, San Jose,
San Luis Obispo, Santa Barbara
City of Jackson v. WCAB (Rice)
By Scott W. Darling
Non-industrial Apportionment to Genetic Degenerative Conditions
The Rice decision addressed non-industrial apportionment to an injured workers genetic condition. In Rice, a police officer began work with the City of Jackson in 2004. In the course of employment, he suffered a cumulative trauma injury to his neck, ending April 22, 2009, and subsequently filed a Workers' Compensation claim. He was 29 years old at that time. In 2011, as part of the Worker's Compensation case, he was examined by Qualified Medical Examiner (QME), Dr. Sloane Blair, and it was believed by all that his injury was a result of repetitive bending and twisting of his head and neck. An x-ray revealed degenerative disc disease. At the time, Dr. Blair apportioned Rice's condition to four factors, at an equal 25% to each factor. Those factors were: (1) his work activities for City of Jackson; (2) his prior work activities; (3) his personal activities; and (4) his personal history, including his "heritability and genetics", his "history of smoking", and his prior "diagnosis of lateral epicondylitis" (tennis elbow)..
In 2013, after having surgery, Rice was re-examined by Dr. Blair. Her diagnosis did not change; however, her apportionment did. At that time, she changed her apportionment to 17% to each of the first three factors and 49% to his personal history. In doing so, Dr. Blair stated that, since Rice's last evaluation in 2011, there were several publications which contained studies that supported the position of "genomics as a significant causative factor in cervical spine disability." Dr. Blair cited several of these studies in both her re-examination report as well as another supplemental report she provided in response to questions from Rice's attorney. She noted these studies suggested heritability could account for up to 75% of degenerative disc disease and that environmental factors contribute little, or not at all. As such, even without researching Rice's family history, she could state "to a reasonable degree of medical probability that genetics has played a role in Mr. Rice's injury.".
The WCJ found Dr. Blair's position regarding genetic factors to be substantial medical evidence and found that the city had met its burden regarding the non-industrial apportionment.1 The matter was appealed to the WCAB, which overturned the findings of the WCJ and returned the matter to the Trial level to re-issue an unapportioned award. In its decision, the WCAB stated that Dr. Blair's determination did not rise to the level of substantial medical evidence. The WCAB further stated that "finding causation on applicant's genetics opens the door to apportionment of disability to impermissible immutable factors" and was not proper apportionment to "specific identifiable factors.".
In reaching its finding, the 3rd District Appellate Court took issue with each of the WCAB's findings. As to genetics not being a proper factor for apportionment, the Court cited several cases since the passing of SB 899 in which the WCAB allowed apportionment on that very same factor, although the exact term "genetics" might not have been used.2
Further, the Court found that Dr. Blair properly apportioned to Rice's disability, not his injury, specifically noting that Dr. Blair found Rice's injury to be a cumulative trauma of repetitive motion while his disability was the neck, arm, hand and shoulder pain that arose from that injury. Therefore, the finding that such pain derived primarily from genetics was correct apportionment.
Lastly, the Court found Dr. Blair's report to be substantial medical evidence in that she cited specific medical studies that she relied on, naming the pages within that she relied on, as well as she demonstrated substantial familiarity with apportionment. Her findings were well reasoned and she affirmed that she could state her findings with a reasonable degree of medical probability.3
This case does have some unique circumstances. It is worth noting, while genetic factors may be substantially linked to degenerative disc disease, the fact that research also showed environmental factors played very little in the causation of such disability may be just as significant. As such, without those environmental factors there is little else to attribute causation, other than genetics. In this case, Dr. Blair acknowledged that she never researched Rice's family medical history since the studies showed that genetics was a major factor and environmental factors were not. If the research showed that both hereditary and environmental factors could play a role then it seems apparent research into family history would be necessary.
Further, Rice was a young man with minimal time on the job. These facts probably played a larger role in the determination since it seems highly unlikely someone of his age and work experience would have significant degenerative disc disease absent some type of genetic predisposition to such. If Rice was significantly older with many more years of employment under the same conditions, then the findings of Dr. Blair may not have been found to have the same amount of support. Additionally, the fact that Rice's injury was cumulative rather than specific needs to be noted since the sudden onset of disability that typically occurs with a specific injury, while not impossible, would definitely be more difficult to apportion to genetics.4
Lastly, the Appellate Court, in a footnote, noted that an amicus curiae brief submitted an argument that apportionment to genetics is discrimination pursuant to Government Code section 11135; however, the Court declined to address the argument since it was not raised by petitioner.5 As such, it is unclear as to what weight that argument may have, but since the Court did note it I would expect there to argument regarding such in the very near future. Therefore, we may not have heard the last of this issue.
This case should provide excellent support for apportionment involving degenerative disc disease cases. Although there are some unique factors, defense attorneys should always explore other potential hereditary medical issues in depositions. The attorneys at Yrulegui & Roberts make it a point to conduct thorough depositions to ensure our clients do not pay a penny more than they are legally required to pay in any industrial injury case. Please contact our office with any questions or to further discuss this case.
1 It is noted that the WCJ did not find Dr. Blair’s apportionment to prior work activities (17%) and personal activities (17%) to be substantial medical evidence, but this was not part of the appeal.
2 The Court cited Kos v. Workers’ Comp. Appeals Bd. (2008) 73 Cal.Comp.Cases 529, 530; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 608-609; and Acme Steel v. Workers’ Comp. Appeals Bd. (2013) 218 Cal.App.4th 1137, 1139, noting that all three cases had similar finds of apportionment to pre-existing genetic, pathological, or congenital conditions that are degenerative.
3 In her supplemental report, Dr. Blair stated that, while the studies supported apportionment of 75%, she decided to err on the side of the patient in the event there was some inherent weakness in the studies, although she was not aware of any. As such, the evidence was strong that there is a predominate genetic causation for which 49% was the lowest level that could reasonably be stated.
4 In her supplemental report, when discussing why she did not evaluate Rice’s family medical history, Dr. Blair noted, “the evidence Rice’s degenerative disc disease having a predominantly genetic cause was ‘fairly strong’ when there is no clear traumatic injury, as in Rice’s case.” The fact that Rice’s injury was cumulative was a key factor in being able to apportion to a genetic history.
5The California Applicants’ Attorneys Association filed the amicus curiae brief. Government Code section 11135 prohibits government programs or activities from discrimination because of, inter alia, physical disability or genetic information.
• Labor Code §4903.8(b) - Lien Litigation
• Res Judicata and Collateral Estoppel
• City of Jackson v. WCAB (Rice)
• Jaime Simmons v. Just Wingin’ It, Inc.
• Maxham v. SCIF
• Senate Bill 11/60/Lien Anti-Fraud Provisions and Utilization Review Changes
• The Post-Termination Defense
• Penalties Assessed Under Labor Code Section 5814
• New California Law Establishes Shared Liability Between Employer & Labor Contractor
• Rulings Concerning Medical Treatment Disputes
• Cannon Appellate Decision and The Cannon Ball Effect It Will Have
• The Beginning and Ending of Temporary Disability
• Medical Provider Network Changes
• New Lien Regulations
• Y&R Prevails Against Lien Claimants
• Want to know what the applicant is really up to?
• New En banc decision from WCAB allows Defendant's more Discovery
• A First-Year Associate's Perspective on Workers' Compensation in California
• An Alternative Strategy for Protection against Illegitimate Treating Practices
• TTD & PD Rates for Seasonal Employees
• Labor Code 4658(d)(3)(A)
• Y&R Obtains Take-Nothing from WCAB