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California Senate Bill 788 introduced to amend Labor Code Section 4663 to prohibit consideration of genetic characteristics in apportionment determination by Debra Tobias, Esq.

2021-03-26

Senate Bill 788 - An act to amend Labor Code Section 4663

On February 19, 2021 Senate Bill 788 was introduced to amend Labor Code Section 4663 to prohibit consideration of race, religious creed, color, national origin, age, gender, marital status, sex, sexual identity, sexual orientation, or genetic characteristics to determine the approximate percentage of the permanent disability caused by other factors.

While this bill sounds like a progressive shift, it may actually contradict existing and recent case law addressing apportionment to genetics.

In 2004, the California Legislature overhauled the apportionment statutes as part of the Senate Bill 899 reforms. The legislation amended Labor Code section 4663 to state “a physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury....”

Since the enactment of Senate Bill No. 899 in 2004, 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.

Not surprisingly, interpretations of this statutory language have been frequently litigated.

In City of Jackson v. WCAB (Rice), (2017) 11 Cal. App. 5th 109, 216 Cal. Rptr. 3d 911, 82 Cal. Comp. Cases 437, the Court held apportionment of permanent disability in a workers' compensation case may be properly based on genetics or hereditability. The Court noted 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 Court further noted there is no relevant distinction between allowing apportionment based on a preexisting congenital or pathological condition and allowing apportionment based on a preexisting degenerative condition caused by heredity or genetics.

In Jackson, the QME concluded that the employee's neck disability, shoulder, arm, and hand pain was caused by cervical degenerative disc disease, and that the disease, in turn, was caused in large part by heredity or genetics. The qualified medical evaluator Dr. Blair determined that 49 percent of the employee's condition was caused by heredity, genetics, and other personal history factors. Her conclusion was based on medical studies that were cited in her report, in addition to an adequate medical history and examination. The Court concluded that Dr. Blair's combined reports were more than sufficient to meet the standard of substantial medical evidence.

In response to questions from Rice's attorney, Dr. Blair prepared a supplemental report, in which she affirmed that she could state “to a reasonable degree of medical probability that genetics has played a role in Mr. Rice's injury,” despite the fact that there is no way to test for genetic factors. Citing to the referenced medical studies, Dr. Blair stated that one of them said “heritability was ...73 percent in the cervical spine. ... [S]moking, age, and work are only a small percentage of disc disease and most of it is familial.” Another source cited the role of heritability in disc degeneration as 75 percent, and the other stated it was 73 percent. Dr. Blair cited a fourth article that claimed “[t]win studies demonstrate that degeneration in adults may be explained up to 75 percent by genes alone.” The same study found environmental factors to contribute little or not at all. Dr. Blair stated that while these studies supported an apportionment of 75 percent to personal history, she decided to err on the side of the patient in case there was some unknown “inherent weakness” in the study, and decided that 49 percent was the “lowest level that could reasonably be stated.” Dr. Blair stated that even without knowing the cause of Rice's father's back problems, the evidence of Rice's degenerative disc disease having a predominantly genetic cause was “fairly strong” where there is no clear traumatic injury, as in Rice's case.

Further, in Acme Steel v. WCAB. (2013) 218 Cal.App.4th 1137, 1139, 160 Cal. Rptr. 3d 712, the medical examiner apportioned 40 percent of the worker's hearing loss to “‘congenital degeneration’” of the cochlea. The WCJ nevertheless refused to apportion the disability, and the Board denied the employer's petition for reconsideration. The Court of Appeal granted the employer's writ of review and remanded the matter to the Board, holding Labor Code sections 4663 and 4664 required apportionment for the nonindustrial cause due to congenital degeneration where substantial medical evidence showed 100 percent of the hearing loss could not be attributed to the industrial cumulative trauma.

In fact the Jackson Court cited to the Acme Steel case when it stated “we see 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.”

If disc degeneration may be explained up to 75% by genes, and since the District Court of Appeals has already 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, how will the proposed Amendment to Labor Code §4663 withstand scrutiny?

To review Senate Bill 788 click here.

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