On April 26, 2017, the Court of Appeals filed its opinion in the matter of City of Jackson v. WCAB; Christopher Rice (Rice), Case No. C078706; WCAB No. ADJ8701916 (04/26/17) addressing whether or not the apportionment determination of a Qualified Medical Evaluator (QME) constituted substantial medical evidence.  In Rice, the QME apportioned 49% of the disability to the employee’s “personal history”, which included “heritability and genetics.”  As discussed herein, the Court found that in this case, the apportionment determination did constitute substantial medical evidence and was consistent with the dictates of Labor Code Section 4663 (apportionment to causation).

Applicant Christopher Rice (“applicant”) sustained an admitted cumulative trauma injury to his neck secondary to repetitive bending and twisting of the head and neck during the course of his employment as a police officer with the City of Jackson (“City”). Applicant was diagnosed with cervical radiculopathy and cervical degenerative disc disease and underwent surgery.  Applicant was examined on multiple occasions by QME Dr. Sloane Blair.  Dr. Blair issued a medical report in which she apportioned 49% of applicant’s disability to his personal history, “including genetic issues.”  At Trial, the WCALJ found that the City had carried its burden of showing apportionment as to 49% attributable to genetic factors.  Applicant filed for reconsideration.

The WCAB granted reconsideration and ordered the matter returned to the trial level for an unapportioned award of permanent disability. The WCAB reasoned 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 apportioning 49% of applicant’s disability to non-industrial factors.”  The City filed a writ of review with the Court of Appeals, which was granted.

In a detailed and methodical opinion, the Court analyzed the legal standards for establishing “substantial medical evidence” and for finding apportionment under Labor Code Section 4663. To start, the Court concluded that apportionment may be properly based on genetics/hereditability.  In reaching this conclusion, the Court explained that since the enactment of Senate Bill No. 899, apportionment of permanent disability is based on causation.  Per Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, apportionment may now be based on “’other factors’” that caused the disability, including the natural progression of a non-industrial condition or disease, a preexisting disability, pathology, or asymptomatic prior conditions. Escobedo at 617-618.  In light of Escobedo, the Court opined that precluding apportionment based on “impermissible immutable factors” would preclude apportionment based on the very factors that the legislation now permits, i.e. apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.

The WCAB’s ruling reflected a belief that “genetics” is not a proper factor on which to base apportionment. In retort, the Court cited to several prior cases in which such apportionment was allowed.  For example, in Kos v. WCAB (2008) 73 Cal.Comp.Cases 529, the WCAB allowed apportionment of disability where the degenerative disc disease was caused by a “’pre-existing genetic predisposition.’”  (Kos, at pp.530-533).  In Escobedo, supra, the WCAB allowed apportionment based on a non-industrial preexisting congenital or pathological condition.  (Escobedo, at p.617-619).  In Acme Steel v. WCAB (2013) 218 Cal.App.4th 1137, the medical examiner apportioned 40% of the worker’s disability to “congenital degeneration”.  Neither the ALJ nor the WCAB accepted this apportionment finding.  On appeal, the Court remanded the case to the WCAB, holding that Labor Code Section 4663 required apportionment based on congenital degeneration where supported by substantial medical evidence.  (Acme Steel, at p.1142-1143).  After laying out each of these case histories, the Court concluded that it perceived no relevant distinction between the apportionment found in Kos, Escobedo, and Acme Steel and allowing apportionment for preexisting degenerative disease caused by heredity or genetics.

Having found that apportionment may be properly based on genetics/hereditability, the Court went on to analyze whether or not the medical evidence in Rice was substantial medical evidence to support an apportionment finding.  First, contrary to the WCAB’s opinion, the Court found that the QME did not impermissibly apportion causation to injury rather than disability.  The QME found that the injury was due to repetitive motion.  The disability, on the other hand, was due in part to genetics.  Next, the Court conducted an extensive analysis as to whether or not the QME’s opinion constitutes substantial evidence.

In weighing the issue of substantial evidence, the Court enumerated several factors required by Escobedo for a proper apportionment allocation.  In order for a medical opinion to constitute substantial medical evidence, (1) it must be predicated on “reasonable medical probability”; (2) it must include the reasoning behind the opinion; (3) it must disclose familiarity with the concepts of apportionment; and (4) it must set forth the basis for the opinion.  In Rice, the Court found that the opinion of the QME met each of these benchmarks.

Specifically, the QME repeatedly stated to a reasonable degree of medical probability that genetics played a role in applicant’s disability. She relied on and identified three medical publications that indicated the role of heredity in causing degenerative disc disease.  She explained the findings from those studies which supported apportionment as high as 75%.  She explained she erred in favor of the applicant by only apportioning 49%, stating that this was the “lowest level that could reasonably be stated” based on the studies.  The evidence laid out showed that every case of degenerative disc disease is caused in part by genetics or heredity.  Thus, it was unnecessary to know applicant’s personal familial medical history.  Genetics or heredity was found to be a factor in all cases of degenerative disc disease.  In sum, the QME stated with confidence that her opinion was predicated on reasonable degree of medical probability, she gave reasons for her opinion (published studies), she displayed familiarity with the concept of apportionment, and she appropriately apportioned disability and not injury.  The QME’s reports were “more than sufficient” to meet the standard of substantial medical evidence.

Based on the foregoing, the Court annulled the decision of the WCAB and remanded the matter to the WCAB to deny applicant’s reconsideration.

In some ways, Rice appears to have opened the door for greater and more frequent findings of apportionment, now citing to genetics and heredity.  Practitioners should be cautioned, however, that any blanket statement of apportionment to these factors would not likely be sufficient to meet the substantial evidence standard.  Rather, the physicians’ opinion must still meet the Escobedo benchmarks, including reasonable medical probability, providing reasoning for an opinion, demonstrating an understanding of apportionment, citation to authority, and apportioning to disability and not injury.  Assuming an evaluator’s opinion is as thorough and complete and well-documented, as it appears was the case in Rice, then doctors should be encouraged to consider apportionment to genetics and heredity where it can be supported.

Given the prominence of the case, Amicus Curiae briefs were filed on behalf of the California Chamber of Commerce in support of the City and by the California Applicants’ Attorneys Association (CAAA) on behalf of applicant. In its brief, CAAA argued that apportionment to genetics is unlawful invidious discrimination pursuant to Government Code section 11135.  Because this argument was not raised by the applicant himself, it was not considered by the Court.  In light of the arguments raised but not considered by CAAA, this is not likely the final word on the apportionment to genetics issue.  We anticipate the possibility of litigation in the future on the discrimination issue.