Dear Clients and Friends:
On 04/26/2017, the Third District Court of Appeal certified for publication its decision in The City of Jackson v. WCAB [C078706/ADJ8701916].
This is a very important case impacting apportionment under Labor Code § 4663. By this decision, the DCA has determined that apportionment under Escobedo must also encompass factors which include heredity, genomics and heritability. In reading this case, it seems as if the DCA has also adopted the premise that apportionment to these included factors is supported, whenever there are case facts demonstrating the existence of adult degenerative disc disease or arthritis. In other words, the presence of adult degenerative disc disease or arthritis will support apportionment to causation based upon heredity, genomics and heritability.
In this case, applicant was a City Police Officer, who filed a claim of cumulative trauma, alleging injuries to his neck and with the CT period ending 04/22/2009. Before he had neck surgery, the applicant was examined by QME, Sloane Blair, M.D. After X–rays were taken showing degenerative disc disease, Dr. Blair diagnosed the applicant with cervical radiculopathy as well as cervical degenerative disc disease. Though he concluded there was industrial contribution sufficient to establish injury, he separately concluded that apportionment was established, partly due to “heritability and genetics.” And in a supplemental medical report, Dr. Blair enhanced his apportionment calculus, therefore lending more support to causation of permanent disability relating to genomics, genetics and heritable issues. He therefore ended up apportioning 49% of the impairment to personal histories, “including genetic issues.”
The WCAB on reconsideration rejected apportionment on this basis. Interestingly, in defendant’s Writ of Review, the constitutional issue of whether apportionment to genetics or heredity could be a potential violation of Government Code § 11135 was not raised. Instead, the issue was brought up by the California Applicant’s Attorney’s Association in the filing of their amicus curiae brief. However, the DCA noted that this issue was not part of the writ, so it was never considered. Therefore, a note of caution should be taken as it is highly likely this issue will be raised and considered within the context of another case. But at least for now, we have a very good decision from the DCA.
Accordingly, the DCA has concluded that it was entirely proper for Dr. Blair to have made an apportionment finding based upon genetics and heritability. And, the DCA went out of its way to point out that there is a significant distinction between apportioning to “injury” and apportioning to “disability”. It was pointed out, among other things, that Dr. Blair did not try to apportion to causation in order to find injury. She simply apportioned to causation for apportionment purposes only relating to permanent impairment. As the court stated, “Dr. Blair did not conclude, as the Board apparently determined, that the repetitive motion (the injury) was caused by genetics. Rather, Dr. Blair properly concluded that Rice’s disability, i.e., his debilitating neck, arm, hand, and shoulder pain preventing him from performing his job activities, was caused only partially (17%) by his work activities and was caused primarily (49%) by his genetics. Contrary to the Board’s opinion, Dr. Blair did not apportion causation to injury rather than disability.”
In what may be “dicta,” this decision seems to also stand for the proposition that in every case involving adult degenerative disc disease or arthritis, apportionment may be found to genetics without even taking a family history or conducting genetic studies, if any there are, since the premises upon which Dr. Blair found apportionment was a review of published studies, in which the medical literature sustains the proposition that genetics and heritability play a role in degenerative disc disease between 72% and 75% of the time.
The first advice should be to make sure that all future or current joint or advocacy letters going to an AME or QME are revised to reflect these additional apportionment factors, which will be significant whenever there is an indication of any type of degenerative disease or disease process, including arthritic changes. Therefore, this case should be cited or referred to in the revised letters to AMEs or PQMEs, accordingly. You may also want to consider asking for a supplemental report on any recent MMI evaluation, where there may be apportionment opportunity, if there is adult degenerative disease, process or arthritis.
It is also highly recommended that some overlay training occur to make sure that the teams recognize cases where there is adult degenerative disc disease or arthritis and where an AME or PQME may not have factored in apportionment to the actual causes of the impairment, based upon genetics and heritability, as noted in the City of Jackson case.
Finally, claims management may want to consider a retrospective review of pending claims where impairment has not been settled and where the case is still being litigated.
Please contact us if we can help in any way.