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City of Jackson: Court of Appeals Uphold Apportionment to Genetics

Happy Friday, dear readers!

Your humble blogger is very happy to report that in its recent decision, the Court of Appeal ruled that however great a fall Humpty Dumpty might sustain, all the king’s horses and all the king’s men are only responsible for putting back that part of him that was industrially injured.

Convoluted enough for you?  Well, prepare to have your mind blown – nowhere in the rhyme does it say that Humpty was an egg.  In fact, he was a workers’ compensation applicant in California’s claims system.

The case I speak of (or write of, depending on whether my pestering lawyer voice is already stuck in your head) is City of Jackson v. WCAB.   Therein, applicant, a police officer, alleged a cumulative trauma to his neck, shoulder, arm, and hand.  The PQME opined that 49% of his permanent disability as to the neck was caused by genetics and not by the cumulative trauma.

Although the WCJ sustained this apportionment, the WCAB reversed, finding instead that the report was not substantial evidence as to apportionment because apportionment to genetics was an impermissible immutable factor.  The Board further opined that such apportionment is an apportionment of the injury rather than the permanent disability.

The Court of Appeals disagreed.

After reviewing the facts and procedural history, the COA noted that the enactment of SB-899 allowed apportionment of permanent disability based on causation.  Citing Brodie v. WCAB, the Court of Appeal noted that “[s]ince the enactment of Senate Bill No. 899, apportionment of permanent disability is based on causation , and the employer is liable only for the percentage of permanent disability directly caused by the industrial injury.”  The COA continued that the law specifically permits “apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition.”

In citing the case of ACME Steel v. WCAB, the Court of Appeal also held that there is “no relevant distinction between apportionment for a preexisting disease that is congenital and degenerative, and apportionment for a preexisting degenerative disease caused by heredity or genetics.”

Accordingly, the PQME appropriately identified and estimated a non-industrial cause of applicant’s permanent disability.  The Court of Appeal ruled that this genetic predisposition was not an impermissible immutable factor.

We’ve seen something like this before, though it went largely unnoticed: in the matter of Reff v. WCAB, a 2011 writ denied case, the industrial pneumonia lit up applicant’s pre-existing but asymptomatic  common variable immune deficiency, resulting in significant disability and need for treatment.

Another interesting fact in this case was the element of causation – as this was claimed as a cumulative trauma, the Court of Appeal opined that the QME was not apportioning to causation of injury, as the QME was not asserting that the repetitive motion that caused the injury was in turn caused by genetics.  Instead the disability was caused by applicant’s genetics.

So, some take-aways from this case: some QMEs will decline to apportion to pre-existing or non-industrial conditions, reasoning that, if applicant was able to perform his job duties before, there was no visible disability.  But, this opinion appears to hold that apportionment to asymptomatic pre-existing conditions that are only triggered by the industrial injury is appropriate.

Furthermore, genetic conditions are apparently NOT an impermissible immutable factor.  The Court of Appeal expressly rejected this holding to opine that it is permissible for a QME to apportion permanent disability to such a condition.

For the more serious cases, this seems like a good opportunity to bring up the concept of 4050 exams.  If the stakes are high enough,  it might make sense to hire a 4050 doctor to conduct an exam, and offer both literature and guidance to the defense attorney on the extent of permanent disability that should be attributed to non-industrial causes, such as genetic conditions.

Score a point for the good guys!

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