City of Jackson v. Workers' Comp. Appeals Bd.

• Decision Date: 26 April 2017
• Docket Number: C078706
• Citation: City of Jackson v. Workers' Comp. Appeals Bd., 11 Cal.App.5th 109, 216 Cal.Rptr.3d 911 (Cal. App. 2017)
• Parties: CITY OF JACKSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Christopher Rice, Respondents.
• Court: California Court of Appeals

11 Cal.App.5th 109

216 Cal.Rptr.3d 911

CITY OF JACKSON, Petitioner,

v.WORKERS' COMPENSATION APPEALS BOARD and Christopher Rice, Respondents.

C078706

Court of Appeal, Third District, California.

Filed April 26, 2017

Lenahan, Lee, Slater & Pearse and Charles S. Templeton, Sacramento, for Petitioner.

Finnegan, Marks, Theofel & Desmond and Ellen Sims Langille, San Francisco, for California Chamber of Commerce as Amicus Curiae on behalf of Petitioner.

Mastagni Holstedt, Eric D. Ledger and Edward W. Lester, Sacramento, for Respondent Christopher Rice.

No appearance for Respondent Workers' Compensation Appeals Board.

William A. Herreras, San Luis Obispo, for California Applicants' Attorneys Association as Amicus Curiae on behalf of Respondent Christopher Rice.

Blease, Acting P.J.

In this workers' compensation proceeding we granted the writ of review of the employer, City of Jackson (City), after the Workers' Compensation Appeals Board (Board) disregarded the apportionment determination of the qualified medical evaluator (QME) on the ground the determination was not substantial medical evidence and directed the workers' compensation administrative law judge (ALJ) to make an award of unapportioned disability.

The QME concluded that the employee's disability—neck, 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 QME thus assigned causation 49 percent to the employee's personal history, which included, but was not limited to, the genetic cause of the degenerative disease. The ALJ agreed with the QME's apportionment, but the Board did not.

The Board concluded the QME could not assign causation to genetics because that is an "impermissible immutable factor[ ]." The Board also concluded that by relying on the employee's genetic makeup, the QME apportioned the causation of the injury rather than the extent of his disability. Finally, the Board concluded the QME's determination was not substantial medical evidence.

We disagree with each of the Board's conclusions, and shall annul its order and remand with directions to deny reconsideration.

FACTUAL AND PROCEDURAL BACKGROUND

Christopher Rice worked for the City as a police officer. He started employment with City as a reserve officer in August 2004, and became full time in 2005. He sustained injury to his neck arising out of and in the course of his employment during the cumulative period ending April 22, 2009, at which time Rice was 29 years old.

Before undergoing neck surgery, Rice was examined by QME Dr. Sloane Blair in November 2011. Dr. Blair examined Rice and reviewed his medical records. Rice's injury was cumulative, i.e., he had not suffered an exact or isolated injury.¹ Rice and his treating physician believed his pain was a consequence of repetitive bending and twisting of his head and neck.

An X-ray showed degenerative disc disease. Dr. Blair diagnosed Rice with cervical radiculopathy and cervical degenerative disc disease.²

As is relevant to the issue of apportionment, Dr. Blair found Rice's condition was caused by: (1) his work activities for the City; (2) his prior work activities; (3) his personal activities, including prior injuries and recreational activities; and (4) his personal history, in which category Blair included "heritability and genetics," Rice's "history of smoking," and "his diagnosis of lateral epicondylitis [ (commonly known as tennis elbow ) ]." Dr. Blair apportioned each factor equally at 25 percent.

Dr. Blair re-evaluated Rice in May 2013 following his neck surgery. Her diagnosis was unchanged and the four causes contributing to the diagnosis were unchanged, but the apportionment was changed. Dr. Blair stated, "Since his evaluation on 11.7.11, there are specific publications that have lent even more support to the causation of genomics/genetics/heritable issues in terms of his injury." Dr. Blair listed three such studies, and stated that because more recent studies supported "genomics as a significant causative factor in cervical spine disability," her apportionment changed to 17 percent, each to Rice's employment with City, previous employment, and personal activities, and 49 percent to his personal history, "including genetic issues."

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 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.

The ALJ found that Dr. Blair did not provide "sufficient information to identify the nature of any prior cervical problems and ‘how and why’ any such problems are related to applicant's current level of permanent disability." Accordingly, the ALJ concluded that Dr. Blair's apportionment 17 percent to prior work activities and 17 percent to prior activities was not based on substantial evidence. This conclusion is not part of this writ proceeding. The ALJ further found City had carried its burden of showing apportionment as to 49 percent attributable to genetic factors, and this is the determination at issue here.

Rice filed a petition for reconsideration before the Board, arguing that the 49 percent apportionment to genetic risk factors was not substantial medical evidence because there was no evidence Rice's family had a history of cervical degenerative disc disease, and there was no genetic test for degenerative disc disease. The Board granted the petition for reconsideration and eventually ordered the matter returned to the trial level for an unapportioned award of permanent disability. The Board reasoned that "finding causation on applicant's ‘genetics' opens the door to apportionment of disability to impermissible immutable factors.... Without proper apportionment to specific identifiable factors, we cannot rely upon Dr. Blair's determination as substantial medical evidence to justify apportioning 49% of applicant's disability to non-industrial factors."

DISCUSSION

IStandard of Review

We review the Board's factual findings for substantial evidence, but we review its legal decisions de novo.

(Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1298, 135 Cal.Rptr.2d 665, 70 P.3d 1076 ; Le Vesque v. Work men 's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.) This case turns on the Board's legal decisions.

IIApportionment May Be Properly Based on Genetics/Hereditability

The Board opined without explanation that apportioning causation to " ‘genetics' opens the door to apportionment of disability to impermissible immutable factors." We perceive no impermissible apportionment here, and the Board's prior apportionment decisions under similar circumstances belies the validity of its statement.

Prior to 2004, when the Legislature enacted Senate Bill No. 899 (2003-2004 Reg. Sess.), apportionment based on causation was prohibited. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1326, 57 Cal.Rptr.3d 644, 156 P.3d 1100 (Brodie ).) A disability that resulted from both industrial and nonindustrial causes was apportionable only if the nonindustrial portion would have resulted from the normal progression of the nonindustrial disease. (Ibid . ) This meant employers were liable for the entire disability if the disability arose in part from an interaction between an industrial cause and a nonindustrial cause, but the nonindustrial cause alone would not have given rise to a disability. (Ibid . ) Thus, an employer was liable for the entire disability if an industrial injury aggravated a previously existing nonindustrial condition. (Ibid . )

For example, in Zemke v. Work men 's Comp. Appeals Bd. (1968) 68 Cal.2d 794, 796, 69 Cal.Rptr. 88, 441 P.2d 928 (Zemke ), the worker suffered an injury to his back when he lifted a barrel at work. Three doctors agreed that the worker had a preexisting "arthritic condition" that was asymptomatic before the injury. (Id . at p. 797, 69 Cal.Rptr. 88, 441 P.2d 928.) The doctors variously described the preexisting condition as osteoarthritic changes and degenerative disc disease. (Id . at pp. 797-798, 69 Cal.Rptr. 88, 441 P.2d 928.) The Board, following the doctors' opinion on apportionment, found that 50 percent of the worker's disability was attributable to the preexisting condition. (Id . at p. 797, 69 Cal.Rptr. 88, 441 P.2d 928.) The Supreme Court annulled the Board's ruling, holding that, " ‘the employer takes the employee subject to his condition when he enters the employment, and that therefore compensation is not to be denied merely because the workman's physical condition was such as to cause him to suffer a disability from an injury which ordinarily, given a stronger and healthier constitution, would have...