California: Applicant Strategies for Addressing Rice: Whether Apportionment to Genetics Is Appropriate

As reported by the LexisNexis California Workers’ Compensation eNewsletter on May 1, 2017 (see Jacobsmeyer article), in the recent California Third District case of City of Jackson v. W.C.A.B. (Rice), 2017 Cal. App. LEXIS 383, the court addresses an issue of national importance—apportionment to genetics. My practice specializes on depositions of medical doctors in both Workers’ Compensation and the civil arena which I do almost exclusively for the applicant/plaintiff. As such, I had to take notice and ask myself how I would respond to such issues if they were the focus of deposition. This article presents an initial summary as to significant strategic options for the applicant bar to consider.

First, however, several words of caution are appropriate. As the well written article by Mr. Jacobsmeyer correctly states, “there are some fairly unique circumstances in this case that may have a role in the ultimate outcome.” These included the fact that applicant was quite young and so his degeneration must have had a strong genetic component. Second, applicant had not worked for a lengthy period of time in full capacity. Obviously, the less arduous the work, the stronger the argument is against industrial degeneration. Another cautionary note I would point out is, at least in my experience, risk factors for better or worse are already the main focus for nonindustrial causation when it comes to internal claims even before this decision was issued. For instance, familial history is very important in cardiovascular claims already. In the psychiatric specialty, it is very rare that a physician will apportion to genetic risk factors. That would usually be quite speculative absent a very strong record to justify it. So, we are left mainly with the issue of orthopedic degeneration then.

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I think it is important to get the sequence right on this. It may be true that the scientific literature links genetics to degeneration. However, the same studies cited by the doctor in Rice could just as well be utilized to deny any correlation between work activities and degeneration, and may likewise deny any relationship between degeneration and impairment altogether. In other words, if we are to assume that work activities are not the main culprit in degeneration, the question still remains: Who says degeneration is the key to documenting impairment? The same “twin studies” cited by the doctor not only conclude that genetics are mainly responsible for degeneration but also go on to demonstrate that, according to the data relied upon in these studies, there is little correlation altogether between the results of diagnostic studies and symptomatology. Identical diagnostics do not mean identical clinical presentations.

Any orthopedist will tell you that diagnostic studies alone are not really determinative. Someone can have extremely significant diagnostic findings but be functionally “just fine.” Whereas, another individual may have what are considered benign diagnostic findings, yet suffer extreme pain after injury. The issue needs to be one of credibility. So even assuming hypothetically that degeneration was predominantly genetic in origin, this would not necessarily define the level of apportionment. Apportionment is based on the amount of disability or impairment. Disability and impairment are functional losses that show up in subjective complaints and limitations in function as verified by clinical examination.

The next issue that needs to be addressed is how much value should be placed on statistical studies altogether. One can arrive at any number of conclusions by way of statistics. But, a good clinician may ignore any and all such conclusions if they contradict his clinical experience. Examples of this abound in the literature. Recently there was an article in the New York Times called “Flossing and the Art of Scientific Investigation” by Jamie Holmes (November 25, 2016). The author cites an Associated Press report in August of the same year finding that dental flossing did not necessarily foster good oral health. Immediately all of the Dental Associations came to dispute the alleged conclusions, insisting that flossing is important and continues to be recommended. The problem, as they explained it, was that the conclusion of the original article was based on the lack of definitive randomized controlled trials. If that is our standard for information, then indeed it may not be a fact that flossing increases dental health despite the numerous physicians who in their clinical practice can attest for this. The issue is instigated by those who believe in the supremacy of randomized controlled trials as opposed to clinical experience which is said to be fatally subjective.

The author of the article traces this basic dispute to an earlier one in the 1990s regarding the emergence of something that remains very popular and relevant to workers’ compensation practitioners called “evidence-based medicine”. According to the founder of this movement, Dr. David Sackett, “progress towards the truth is impaired in the presence of an expert.” Evidence-based medicine means objective, replicable studies trump anecdotal expert opinions every time. The idea being that personal experience is too limited, quirky, and uncontrolled and therefore subject to bias rather than truth.

However, indeed there was a dispute even among “reputable scientific folk,” as to whether these assumptions in the movement of evidence-based medicine were accurate. For instance, Mark Tonelli, MD, a pulmonologist, countered that good medicine cannot occur in the absence of experiential evidence. The evidence must not only include the dreaded expert in the field but also the experience of the subjects themselves. He writes that illness and healing can only be understood if it includes the context of the particular individual.

So to summarize where this leads for our current discussion, regardless of what the “studies” may or may not say about arduous work and its alleged lack of correlation to impairment or disability, almost all orthopedic clinicians in the field will tell you that they do believe in a correlation. There are very few orthopedic hand specialists that will deny carpal tunnel is related to upper extremity usage, despite whatever the evidence and studies have to say.

When an expert is employed to render an opinion, they must use their clinical experience first and foremost. The bottom line which I cannot dispute is the diagnostic findings upon which doctors often hang their hat are severely overrated in any event. Most orthopedists talking confidentially, at least in my experience, are suffering some sort of “identity crisis.” More and more studies are coming out showing a lack of correlation between diagnostic findings and functional capacity. Even worse, studies are coming out every year showing that the orthopedic surgical solution are often no better than treatment focused on the mind. I am fairly confident that the future of medicine will be changing drastically in the decades to come. The focus will move to the physiatrists, physical medicine, psychologists, and the like. We will be looking for methodologies to control brain and behavior function other than by means of surgical solutions. So sooner or later we will have to deal with this, and this case pushes the sooner, sooner. Keep in mind, though, as of yet, this is still not the medical standard, and unless and until it changes, my depositions for one will still be focused on anatomy, which does, after all is said and done, remain the medical standard, I believe.

Assuming that the brain and the “mind” have more to do with the results of injury than a purely anatomic analysis would describe, the question for lawyers is how to utilize this. It may be distasteful for us, but the key may merely become a credible history of injury together with examination that shows genuine loss of function thereafter. Anatomy won’t be irrelevant, but it may be a lot less relevant then we now think. Different people react to different injuries in widely disparate manners. Yet, if an injury is responsible for that loss of function, the carrier or employer should legally remain liable. Although this may sound like a boon to the applicant/plaintiff bar, the reality in this imaginative future may be different. If the focus is human experience, and that is the true culprit, then effective treatments can likely be developed to produce better results and less costly claims. In addition, almost anything is cheaper than surgery.

And surprisingly, the future is here and now in many respects already. The AMA Guides 5th edition allows for a ratable DRE impairment based on a history of injury and complaints. (Table 15-3, page 584). Not only that, but the Guides instruct the doctor NOT to rate on degeneration. (See last paragraph page 383).

Also fibromyalgia, for which there are a myriad of objective theories as to causal mechanism, was originally diagnosed with “tender points.” But the American College of Rheumatology’s latest change is to propose diagnoses based on a purely subjective survey. (See Wolfe, F. et al., The American College of Rheumatology Preliminary Diagnostic Criteria for Fibromyalgia and Measurement of Symptom Severity, Arthritis Care & Research Vol. 62, No. 5, May 2010, pp 600–610 DOI 10.1002/acr.20140 © 2010, American College of Rheumatology)

The courts are recognizing the effect of subjective pain on impairment as well. Observe this headnote from the Cannon case (City of Sacramento v. Workers' Comp. Appeals Bd., 222 Cal. App. 4th 1360, 79 Cal. Comp. Cases 1):

Court of Appeal, affirming WCAB opinion and decision, held that rating of impairment by analogy to different condition is permissible when no objective abnormalities are found and rating is based solely on subjective complaints of pain and that rating by analogy is not limited to complex or extraordinary cases, when Court of Appeal found that applicant injured left foot AOE/COE while working as police officer for defendant, that agreed medical evaluator reported that it was acceptable to characterize applicant’s residual condition “using a gait derangement abnormality” “by analogy, using Almaraz/Guzman-II as a basis,” that agreed medical evaluator noted that “heel pain, or for that matter, other aspects of pain that do not have any accompanying objective measurement abnormalities, do not rate anything in the AMA Guides, whether or not these problems interfere with one’s activities,” that applicant’s heel pain “interferes with weightbearing activities, particularly running,” and that he “thought that by analogy, it would be similar to an individual with a limp and arthritis, resulting in the 7% impairment recommended” by agreed medical evaluator, that Labor Code § 4660(b)(1) does not mandate that impairment for any particular condition be assessed in any particular way under AMA Guides, and that statute provides merely that “the ‘nature of the physical injury or disfigurement’ shall incorporate [emphasis by court of appeal] the descriptions and measurements of physical impairments and the corresponding percentages of impairments.” (emphasis added)

So far, we have explored relevant medical issues such as whether the degeneration is responsible for impairment and the conflict between studies and clinical evidence, but there are also strictly legal issues to consider as well. In many jurisdictions, apportionment is only relevant to causation of impairment but not to the injury itself. If an injury occurs at work, one does not attempt to take apart whether there are nonindustrial issues that also led to the injury. The grand bargain is usually a no-fault system only requiring 1% causation rendering discussion of apportionment irrelevant. So the question appropriately raised is how to define the nature of injury. As many commentators, including Robert Rassp, have pointed out, if injury is defined as the condition itself then it may be the physician is illegally attempting to apportion predisposition to injury rather than to impairments itself. (For instance, a listhesis or small spinal canal may be entirely genetic but apportionment to these factors may be illegal if they have no incidence of impairment but for the injury.) And this nicely segues to another important legal issue, which is substantial medical legal evidence. If the Rice decision is appealed, there is a vast history of case law setting a high bar to legitimize apportionment to genetic factors. Apportionment of genetics in and of itself has traditionally been illegal without further discussion as to “the how and why.”

Based on this analysis, it may be that this case, although headline producing, may not be truly definitive of any change in the way the system operates. But, regardless, the plaintiff applicant bar should be prepared to delve into issues of whether degeneration is actually the cause of impairment, emphasizing clinical experience, and ultimately focusing on loss of function caused by injury. I think the writing is on the wall as to the direction of the future. Unless and until the standard medical explanations change, parties should continue to rely on current standards in coming to a conclusion. But the future likely is a mind centered one, which will have pros and cons for both employees and the employers.

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