City of Jackson (Rice) Helps Defendants Fight for Non-Industrial ApportionmentMay 23, 2017
by Jessie Zaylia, Partner
On April 26, 2017, the Third District Court of Appeal issued its decision in City of Jackson v. Workers’ Compensation Appeals Board (Rice) resolving the question whether “heritability and genetics” may be properly considered to apportion causation for a disability caused by a degenerative disease. (No. C078706, publication pending). The court answered the question in the affirmative.
In City of Jackson (Rice), the applicant police officer filed a claim for his disability caused by a cervical degenerative disc disease. The qualified medical examiner found the applicant suffered a cumulative neck injury and initially apportioned 25% causation to “heritability and genetics.” In a supplemental report, however, the QME changed the apportionment to 49%. In support, the QME cited three medical studies that found genetics to be “a significant causative factor in cervical spine disability [. . .].” In response to the applicant’s petition for reconsideration, the Workers’ Compensation Appeals Board’s disregarded the QME’s apportionment and ordered an unapportioned disability award for the applicant. The Third District granted the City of Jackson’s petition for writ of review and annulled the Board’s decision.
The court’s ruling in City of Jackson (Rice) is notable in two respects. First, the court held that Labor Code section 4663 permits consideration of an applicant’s genetics when apportioning causation in a degenerative disease case. The court dismissed the Board’s concern that “apportioning causation to genetics opens the door” to apportioning causation to “impermissible immutable factors.” It cited two previous rulings where the Board permitted such apportionment “though it may not have used the term ‘genetics.’”
Second, the court did not require an inquiry into the applicant’s familial medical history to justify the apportionment. Rather, the published medical studies that the QME relied on were substantial medical evidence in and of their own right to justify apportionment at 49%. The medical studies “indicated that genetics or heredity was a majority factor in all cases of degenerative disc disease,” “unless there [wa]s a clear traumatic injury.” In light of this, the court found that an inquiry into the applicant’s familial medical history was “unnecessary.”
City of Jackson (Rice) will undoubtedly assist defendants in developing non-industrial apportionment for their claims. The case highlights the importance of raising the issue of genetics when presenting an apportionment defense. It also underscores the importance of using peer-reviewed medical journal articles during med-legal cross-examinations as well as within requests for reporting so that doctors can render conclusions based on substantial, industry-established grounds for apportionment.