Workers’ compensation in California is about to enter the tar pit of genetics,
That’s the take-away from City of Jackson v. WCAB (Christopher Rice), an April 26, 2017 ruling by the California Court of Appeal 3rd District that has been certified for publication (the entire opinion is at the bottom of this post).
Writing for the three judge panel, (Blease, Hoch and Renner), Justice Blease finds that apportionment may be properly based on genetics/heritability.
The case involved a claim of cumulative trauma to the neck of a 29 year old police officer who had served for five years. This was not a long work history, but Rice alleged that repetitive bending and twisting of his head and neck on the job was the cause of his neck, shoulder, arm and hand pain.
X-rays demonstrated degenerative disc disease and the QME found that office Rice had cervical radiculopathy and cervical disc disease.
The QME’s report and deposition indicated that “heritability and genetics” and “genetic issues” were a causative factor meriting apportionment.
In a supplemental report and in deposition, the QME cited various journal articles for the proposition that “genomics” is a “significant causative factor in cervical spine disability”. One such study claimed that the role of genetic factors in disc degeneration was as much as 75%. Another study claimed it was 73%. The court notes that the QME “decided to err on the side of the patient in case there was some unknown “inherent weakness in the study” and thus apportioned out 49% to Rice’s personal history, including but not limited to the genetic cause of degenerative disease.
The award of the trial judge was based on the QME’s opinion, but the WCAB panel reversed, returning the case to the trial judge for an unapportioned award. The WCAB panel noted that :
“finding causation on applicant’s ‘genetics’ opens the door to apportionment of disability to impermissible immutable factors….Without proper apportionment to specific identifiable factors, we cannot rely upon Dr. Blair’s determination as substantial medical evidence to justify apportionment 49% of applicant’s disability to non-industrial factors.”
Rice’s employer appealed and thus the case was eventually heard by the Court of Appeals panel.
After noting that there are a number of post-SB 899 cases which uphold apportionment based on non-industrial pathological degenerative changes, the 3rd DCA states that:
“We perceive no relevant distinction between allowing apportionment based on a preexisting congenital or pathological condition and allowing apportionment based on a preexisting degenerative condition caused by heredity or genetics.”
Rice argued that the QME cannot have known his degenerative disc disease was caused by genetics because the QME had never developed data on his family medical history. The DCA panel states that “It was unnecessary for Dr. Blair to conduct such an analysis because her research indicated that genetics or heredity was a majority factor in all cases of degenerative disc disease“.
Whether this case will be a game changer in California workers’ comp remains to be seen.
The case will be appealed to the California Supreme Court, but whether they decide to hear it is discretionary.
In the meanwhile, I’ll make some predictions:
-we’ll see increasing attempts to have QMEs comment on scientific studies re genetic causation of various conditions, and we may see dueling studies provided to doctors for comment;
-there will continue to be disputes about whether genetic causation of a condition is really causation of an injury rather than causation of disability; how scientific studies are worded may affect how doctors treat this issue in their opinions;
-some defense attorneys may attempt to question workers more aggressively about genetic heritage in depositions;
And there are major unknowns:
-“genetics” may be a slippery slope which takes the inquiry into racial, ethnic and gender issues, since some ethnic and gender groups may be genetically more prone to various conditions; how far will the courts go in allowing apportionment when the apportionment becomes race or gender based? Is apportionment to genetics by definition race neutral?
-to what extent, if any, does inquiry into genetics run afoul of GINA, the Genetic Nondiscrimination Act of 2008? (see link to EEOC page on GINA at the bottom of this post).
We’re already in an era when some individuals are engaging their own genetic tests. I’ve participated in 23andme.com, sending off a vial of my saliva. And in fact I get periodic updates about various screenings they do with my genetic material. As mapping the genome gets cheaper will we see efforts to use that sort of data to rule in/rule out a genetic component to disability? And how scientifically sophisticated are the studies about genetic causation anyway? This is a field that is rapidly evolving.
There are many questions to be answered. But it looks like a tar pit to me.
Here is the link to the EEOC page on GINA:
https://www.eeoc.gov/laws/types/genetic.cfm
Here is the opinion in City of Jackson v.WCAB (Christopher Rice):
CityOfJacksonV.WCAB(ChristopherRice)
Stay tuned.
Julius Young
https://www.boxerlaw.com/attorney/julius-o-young/
510.835.8870