California: Genetics – A Non-Industrial Factor?

The analysis of apportionment of disability in the workers’ compensation world changed dramatically after SB899 was enacted in 2004. The changes occurred in ways no one could ever have imagined. Then, in 2017, the 3rd District Court of Appeal (DCA) issued their decision in the case of City of Jackson v. Workers’ Comp. Appeals Bd. (Rice) (2017) 11 Cal. App. 5th 109 [82 Cal. Comp. Cases 437]. It took some practitioners by surprise when the DCA held that an injured worker’s genetic makeup could factor into a physician’s analysis of non-industrial factors for purposes of apportionment under Labor Code § 4663.

I. Genetic Makeup and Labor Code § 4663 Apportionment

Several noteworthy panel decisions (NPD) have issued recently, setting forth some salient tips on the trend the WCAB is now following, particularly in response to the Rice case.

In the Noteworthy Panel Decision (NPD) of Jensen v. County of Santa Barbara, 2018 Cal. Wrk. Comp. P.D. LEXIS 185, the WCAB explained:

Accordingly, it is now permissible to apportion permanent disability where that disability is actually caused, at least in part, by a preexisting, asymptomatic, non-industrial condition or disease, or by congenital or genetic factors. (Emphasis added)

The WCAB then listed the following three cases in addition to Rice, supra, to illustrate their position.

Acme Steel v. Workers’ Comp. Appeals Bd. (Borman) (2013) 218 Cal. App. 4th 1137 [78 Cal.Comp.Cases 753] (allowing applicant’s hearing disability to be apportioned to congenital degeneration of the cochlea);

E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [71 Cal.Comp.Cases 1687] (allowing apportionment of permanent disability caused by preexisting degenerative disc disease);

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc) (allowing apportionment of permanent disability caused by preexisting degenerative arthritis in both knees).

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II. Will Speculation Invalidate a Physician’s Apportionment Determination?

It is a long held legal principle that in order to be probative on any given issue, including apportionment, the evaluating physician’s opinion must constitute “substantial evidence.” Generally, a checklist of what must be included in a medical-legal report in order for it to constitute “substantial evidence” can be found in Labor Code § 4628 and 8 Cal. Code Reg. § 10606.

In addition, the concept of “substantial evidence” has been explained in many court opinions as follows:

“Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the [WCAB]’s findings if it is based on surmise, speculation, conjecture, or guess.” (Emphasis added.) (See Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal. Comp. Cases 93].)

Generally, if a physician’s opinion is based on “surmise, speculation, conjecture, or guess” it will not constitute substantial evidence. The interesting fact in the Jensen case is that the WCAB seemed to suggest that an apportionment determination based on a “bit of speculation” might not be fatal to the physician’s conclusion. So just how must speculation is permissible before a medical evaluator’s finding no longer constitutes substantial evidence? The WCAB addressed this issue in the Jensen case, as follows:

“We agree that, in opining that about one-third of applicant's disability is industrially-caused and two-thirds is caused by his obesity and his family history of hypertension, Dr. Hyman is making an apportionment determination that is an approximation and is not precise. Nevertheless, ‘[o]f necessity every medical opinion must be in a sense speculative [yet] this does not destroy the probative value of such an opinion.’ (Foremost Dairies, Inc. v. Industrial Acc. Com. (McDannald) (1965) 237 Cal.App.2d 560, 572 [30 Cal.Comp.Cases 320].) Here, Dr. Hyman's apportionment opinion is based on his medical evaluation of applicant, his review of applicant's medical records, and his own medical experience and expertise. Further, he stated that his apportionment opinion was based on reasonable medical probability. Accordingly, we will accept it.” (Emphasis added.)

Practice Tip: Case law requires that all medical legal opinions be based on “reasonable medical probability.” (See Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) Although the WCAB did not specifically state this in the Jensen case, it is possible, that if Dr. Hyman had failed to base his apportionment opinion on the legal standard of “reasonable medical probability,” his alleged “speculation” might have invalidated his opinion. Practitioners should make sure that all medical opinions intended to be offered at trial include this phrase, “reasonable medical probability.” If a key medical opinion lacks a basis on this specific standard, one should take the deposition of that physician to determine if the physician believes the standard applies. (See E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922 [71 Cal. Comp. Cases 1687].)

III. Causation of Injury versus Causation of Disability

It also appears in the Jensen case, that Dr. Hyman was apportioning to causation of injury, instead of causation of disability as required per Labor Code § 4663. However, the WCAB in Jensen found that to be permissible, since in that case, Dr. Hyman was saying that causation of injury (hypertension/stroke) was the same concept as causation of disability (hypertensive cardiovascular disease, vision loss, and mental impairment). In the rare case, where causation of injury and causation of disability warrant essentially the same analysis, it may be permissible to apportion to either causation of injury or causation of disability.

Practice Tip: Physicians often confuse the concepts of “causation of injury” and “causation of disability.” These are usually two entirely different concepts, which usually require two totally separate analyses by the evaluating physician. When the physician mistakenly apportions non-industrial factors to “causation of injury,” instead of correctly apportioning to “causation of disability,” the physician’s apportionment determination will not usually be valid. When examining your medical evidence for trial, make sure your evaluating physician has used the correct legal standard for all of his or her opinions. See the NPD of Huber v. Laboratory Corp of America, 2015 Cal. Wrk. Comp. P.D. LEXIS 195, where the WCJ wrote:

“It appears that Dr. Chitnis may have been apportioning to the causation of injury (hand intensive work and hypothyroidism as a risk factor for developing carpal tunnel) and not necessarily the causation of impairment. (See United Airlines v. Workers’ Comp. Appeals Bd. (2007) 72 Cal. Comp. Cases 1415 (writ denied.)) … After review of the entire record, it is determined that defendant failed in their burden of proof to establish apportionment of permanent disability to causes other than the industrial injury. Therefore, applicant is entitled to an unapportioned award regarding the impairment for her bilateral wrists.”

IV. Physician Must Explain “How” and “Why”

It is not sufficient for a doctor to declare a conclusion on apportionment, without explaining “how” and “why” that conclusion was reached. As discussed above, the WCAB in Jensen, surpa, felt the evaluating physician did explain “how” and “why” and approved his analysis. However, in the NPD of Sobol v. State of California, 2017 Cal. Wrk. Comp. P.D. LEXIS 454, the WCAB’s held just the opposite.

In Sobol, supra, the WCAB acknowledged that Agreed Medical Evaluator (AME), Dr. Ramsey based his apportionment conclusion of 75% industrial factors and 25% non-industrial (genetic) factors on “reasonable medical probability.” And Dr. Ramsey even stated that he made this determination without “speculation or guesswork.” However, as the WCJ explains, Dr. Ramsey did not explain “how” and “why” he reached this conclusion:

“AME Ramsey did not give one sentence of reasoning behind his opinion. He made bold, conclusionary statements such as that the cause of degenerative disc disease has been convincingly shown to be genetic, but he does not back that up with substantial medical evidence; he does not state how, why, when or where the cause of degenerative disc disease was shown to be genetic, he just makes the statement. He does not list any research studies or facts pertinent to the instant case that support causation outside the industrial exposure. Granted, he does cite one x-ray; however, that x-ray was taken in 2010 when Applicant had been in the employment for some twenty years. There was no discussion as to whether the previous twenty years of employment had caused the mild degeneration found on the x-ray or whether that degeneration had some other cause.” (Emphasis added.)

Compare the Sobol case, with the NPD of Schuy v. City of Yuba, 2018 Cal. Wrk. Comp. P.D. LEXIS 136, wherein the parties used the same AME, Dr. William H. Ramsey as in the Sobol case. In the WCAB split opinion NPD of Schuy, the majority applied the apportionment analysis used in the Rice case and held that Dr. Ramsey’s apportionment of 50% of applicant’s lower back condition attributable to non-industrial degenerative disease that is “genetic in origin” constituted substantial evidence. However, the dissenting Commissioner failed to see how Dr. Ramsey’s report could constitute substantial evidence, since it was that Commissioner’s belief that Dr. Ramsey did not adequately explain the “how” and “why” of his conclusion.

V. Conclusion

Other recent NPD cases have issued addressing the holding in Rice, supra, such as, Martinez v. County of Alameda, 2018 Cal. Wrk. Comp. P.D. LEXIS 17. In the Martinez case, the WCAB held defendant did not meet its burden of proof regarding apportionment, because the evaluating physician, Dr. Larach, impermissibly apportioned to risk factors, such as “applicant’s predisposition to a stroke due to the pre-existing atherosclerotic disease in her left carotid artery.” In addition, Dr. Larach impermissibly apportioned to causation of applicant’s injury, “i.e., her stroke – and not to the causation of her disability.”

Apportionment issues can be problematic. The opinions cited above demonstrate the need to be precise when claiming and/or challenging a physician’s apportionment determination. Given the recent divergent opinions of the WCAB in their interpretation of the Rice case, practitioners should re-read each of the above cases before beginning to work a case up for trial that deals with apportionment. Failure to do so could prevent key exhibits from being offered into evidence that might meet that party’s burden of proof.

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