Last week, the Court of Appeal for the Third District issued one of the few published appellate decisions interpreting Labor Code section 4663, and specifically, what constitutes valid grounds for apportionment to non-industrial causes.
The case, City of Jackson v. Workers’ Comp. Appeals Bd. (Rice) (3rd Dist., C078706), involved a police officer who sustained an admitted cumulative trauma injury to his cervical spine, with objective factors of degenerative disc disease. The evaluating QME ultimately apportioned 49 percent of the disability to the injured worker’s personal history, “including genetic issues.” In doing so, the QME did not rely on genetic testing or any details concerning a family history of degenerative disc disease, but rather on recently published studies showing that “degenerative disc disease has a predominantly genetic cause . . . where there is no clear traumatic injury."
The WCAB found that the QME’s apportionment determination did not constitute substantial medical evidence, and returned the case to the trial level for an unapportioned award of permanent disability. Specifically, the WCAB found that apportioning to the injured worker’s “‘genetics’ opens the door to apportionment of disability to impermissible immutable factors.”
The Court of Appeal reversed the WCAB’s decision, and determined that apportioning to genetic factors is essentially the same as apportioning to pathology or asymptomatic prior conditions, factors to which apportionment is explicitly permissible under Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604. Citing Kos v. Workers’ Comp. Appeals Bd. (2008) 73 Cal.Comp.Cases 529 and Acme Steel v. Workers’ Comp. Appeals Bd. (2013) 218 Cal.App.4th 1137, the Court noted that the WCAB has historically apportioned to factors that are essentially genetic in nature, and should be compelled to do so in this case. In sum, the QME’s apportionment determination in this case constituted substantial medical evidence.