Apportionment and Genetic Factors of Disability

The Court of Appeal, Third Appellate District, in City of Jackson v. WCAB (Rice) (4/26/17), has issued a decision that will provide substantial assistance in achieving the Legislature’s directive in Labor Code Section 4663 with respect to apportionment.

Mr. Rice, a 29 year old police officer, claimed a cumulative trauma injury to his neck, which ultimately resulted in cervical spine surgery. The QME, Dr. Blair, issued several reports diagnosing cervical degenerative disc disease, which was caused by several factors, including his work activity with the City of Jackson, personal activities, prior employment, and personal history, including heritability and genetics. Ultimately, Dr. Blair concluded that, based on her review of recent medical studies, at least 49% of the disability was caused by the degenerative disease attributable to the genetic factors. Dr. Blair’s opinion was relied upon by the Trial Court.

Predictably, the employee filed a Petition for Reconsideration arguing that 49% apportionment to genetic risk factors should not be sustained because there was no evidence of familial degenerative disc disease and that there is no genetic test for degenerative disc disease. The WCAB, in granting the appeal, held that finding causation based on applicant’s genetics was improper because it opened the door to impermissible immutable factors.

The employer filed a Petition for Writ of Review contending that the Trial Court’s apportionment was proper. The DCA, in reversing the decision of the WCAB, unequivocally expressed the propriety of predicating apportionment based on genetics, confirmed that causation of the disability is necessary for legally viable apportionment and expressed the fashion by which Dr. Blair’s opinion regarding apportionment constituted substantial evidence. The Court of Appeal emphasized the importance of its decision by having same certified for publication and by awarding the costs of the appeal to the employer!

Accordingly, it is absolutely essential that a medical expert be afforded an opportunity to determine whether the disability was directly caused by a medical condition attributable to genetic factors. Where an AME is utilized, the parties must agree on the information that is to be transmitted to the medical practitioner, pursuant to Labor Code §4062.3(c). Thus, absent an agreement with applicant’s counsel, the scientific studies would constitute information because they would be records relevant to the determination of a medical issue and cannot be presented to the physician, absent his/her expression of a desire to review them in a deposition. However, merely advocating a legal position (i.e., that the disability was directly caused by a medical condition attributable to genetic factors) in a letter constitutes a communication, rather than information. As long as the communication does not misrepresent case law, no agreement need be obtained prior to transmitting same to the medical expert. (See the recent decisions in Maxham v. California Department of Corrections (2017) 82 CCC 136 and Cortez v. Employment Resources Group 2017 Cal. Wrk. Comp. P.D. LEXIS 60) In those cases in which a QME is employed, the legal argument, reference to Rice, and the scientific studies should be contained in the advocacy letter sent to applicant’s counsel prior to transmission of same to the panel QME. Assuming that a timely objection is asserted pursuant to Labor Code §4062.3(b) and that it would not be propitious to secure an immediate discovery proceeding before the Court on this issue, the issues as to the existence of genetic risk factors causing a condition which should be deemed directly causative of the disability and the need for the QME to review the scientific studies can be explored during cross-examination of the QME.

The physician, either in the advocacy letter or during the course of deposition, must affirm his/her understanding of the Court’s interpretation of current Labor Code §4663 in Escobedo v. Marshall’s (2005) 70 CCC 604: that apportionment can be based on all factors which caused the disability, including the natural progression of a non-industrial condition or disease, a pre-existing disability, pathology, asymptomatic prior conditions and retroactive prophylactic work restrictions. Moreover, pursuant to Rice, the medical expert should be made aware of the lack of any relevant distinction between allowing apportionment based on a pre-existing congenital or pathological condition and allowing apportionment based on a pre-existing degenerative condition caused by heredity or genetics. The fact that there is no specific evidence of familial degenerative disc disease nor that there currently does not exist a genetic test for same will not preclude the physician from expressing the opinion that was rendered by Dr. Blair based on the scientific studies.

The AME or QME must be cognizant of the need to express an apportionment opinion to disability, as opposed to the injury, although the causation of both can be the same. (Kos v. WCAB (2008) 73 CCC 529) Disability involves an actual incapacity to perform the tasks of one’s job with the resulting wage loss as well as a physical impairment of the body that may or may not be incapacitating. (Allied Compensation Insurance v. IAC (1963) 211 Cal. App. 2d 821) What was the percentage of disability caused by the medical condition attributable to genetics?

In order for the Court to rely upon the medical expert’s conclusion that a genetically caused condition directly caused disability, it is imperative that the opinion be deemed to constitute substantial evidence. The Court in Rice reiterated the key components of this concept that were expressed by the Supreme Court in Braewood Convalescent Hospital v. WCAB (Bolton) (1983) 34 Cal 3d. 159:

1. The opinion must be based on reasonable medical probability.
2. The opinion must set forth the physician’s reasoning.
3. The physician must disclose his/her familiarity with the concept of apportionment.
4. The physician must describe in detail the exact nature of the apportionable disability with the basis for the opinion.
5. The opinion must be devoid of speculation and conjecture.
6. The opinion must be based on pertinent, germane facts as well as on an adequate examination, history and review of records.

SRTK attorneys are prepared to utilize all of their creative abilities to determine not only the viability of applying this theory, but also the subject matter that is encompassed. The result in Rice may have been different had the employee been a 70yearold man who was afflicted with the same condition but had been working as a laborer performing arduous, repetitive duties for 50 years. Also, note that the approach expressed by the DCA should not be limited to genetically caused diseases affecting the orthopaedic system. There are potentially a myriad of internal and cardiovascular diseases productive of disability directly attributable to genetic causes.