RE: GEORGE THE BARTENDER AND THE ATTACK ON GENETIC/HEREDITARY CAUSATION OR I SAVED YOU A NICE (AP)PORTION OF RICE TO ENJOY1
FROM THE LOBBY BAR AT THE HYATT:
As I made my way to the Lobby Bar after a rather lengthy absence I thought to myself, “Why did I stop coming here again?” (We’ll address this later, loyal Lobby Bar patron). More to the point, I was also thinking, “All is right with the world and the concept of apportionment.” I was looking forward to seeing my longtime friend Kim, the Hyatt’s breathtakingly beautiful cocktail waitress, and to once again sip on a Beefeater’s martini straight up with two olives. 2
I strode in and settled into my usual seat, which thankfully was unoccupied. I was in a buoyant mood because earlier in the day I had received a copy of the excellent decision by the 3rd District Court of Appeal (CA) in the case of City of Jackson v. Workers’ Comp. Appeals Bd. (Rice), 11 Cal. App. 5th 109, 216 Cal. Rptr. 3d 911, 82 Cal. Comp. Cases 437, 2017 Cal. App. LEXIS 383, issued on April 26, 2017. Armed with my copy of Rice I looked around for my nemesis and worthy opponent, Ron Summers, George the Bartender’s workers’ compensation attorney. I spied him at the other end of the bar. He at first looked dismayed to see me, and then did his best to avoid eye contact with me, perhaps hoping by avoiding acknowledging me that I would somehow turn out to be just an illusion.
Before I could head over to discuss this decision with him, Kim appeared with my drink in tow. We exchanged pleasantries and she said she was happy to see me return. I then began to make my way over to Ron.
Here’s some background for you regarding Rice. Ever since the passage of California Senate Bill 899 on April 19, 2004, the California Applicants’ Attorneys Association (CAAA) has attempted to dismantle portions of this reform law with attacks carried out through the courts and the legislature, specifically with a concentration on apportionment pursuant to Labor Code §4663 and §4664.
The most recent attacks allege discrimination by apportioning out that disability caused by heredity or genetics. The argument goes like this: Why should an individual be penalized by apportionment solely because a portion of their disability was caused by genetics or heredity? CAAA has argued and continues to argue that it is discrimination to penalize an injured worker solely because of their genetics or heredity.
I’ll admit that the above argument does have some sound reasoning behind it, as an individual doesn’t have a say in the choosing of their heredity and genetic makeup. However, the employer has no control over this either, although CAAA feels that the employer should be responsible for the apportionment to genetics and heredity.
The injury in question in Rice was pain in the applicant’s neck, shoulder, arm and hand as a result of cumulative trauma to the applicant’s neck. The Panel QME found that this pain stemmed from a cervical degenerative disc disease, which they attributed principally to heredity or genetics. As a result of their findings, the QME assigned 49% of causation of the injury to the employee’s personal history.
The Workers’ Compensation Judge (WCJ) agreed with the QME and Rice filed a petition for reconsideration arguing “. . . 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 Workers’ Compensation Appeals Board (WCAB) granted the applicant’s petition for reconsideration, overturning the decision of the WCJ and returned the matter to the trial level for an un-apportioned award of permanent disability, reasoning:
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.
I reached the other end of the bar and confirmed to Ron that I was indeed real and not a ghost. He was still slightly taken aback by my presence but greeted me warmly all the same. I could sense that he had probably enjoyed my absence from the Lobby Bar and knew that my re-appearance somehow bode ill for him. And boy was he right!
I reached into my briefcase and took out a copy of Rice and handed it to Ron. He was none too pleased to read the case caption on it. Smirking, I pointed out to him the most telling part of the decision can be found in the discussion, specifically the section titled: “Apportionment May Be Properly Based on Genetics/Hereditability.” Even though Ron did his best not to listen (putting his hands over his ears) I quoted from Rice as follows3:
Since the enactment of Senate Bill No. 899 (2003–2004 Reg. Sess.), 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. (Brodie, supra, 40 Cal.4th at pp. 1324–325.) Apportionment may now be based on “‘other factors’” that caused the disability, including “the natural progression of a non-industrial condition or disease, a preexisting disability, or a post-injury disabling event[,] … pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions … .” (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617–618 (Escobedo).) 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. (emphasis added)
At this point Ron simply got up and left the bar in a huff. Pleased with myself and happy to be back I motioned to Kim that I was ready for another martini.
With the exception of Kim, George and I, all characters at the Lobby Bar are fictional, as is the storyline, a product of my warped imagination.
The decision by the 3rd District Court of Appeal in Rice is a very scholarly and comprehensive discussion of apportionment both before and after the passage of California Senate Bill 899. All PQME reports and AME reports can be measured against Rice on the apportionment issue.
Although I like to occasionally and good naturedly chide my friends and colleagues at the California Applicants’ Attorneys Association (CAAA), I have to admit that they serve as excellent advocates for injured workers in this state and do an exceptional job in their representation of these workers.
I know there has been a long hiatus between this and the last George the Bartender episode. The demands of work seem to be ever-increasing. Some things suffer and I am sad to say that my humorous take on our wonderful world of workers’ compensation had to be one of them. I am uncertain how long the festivities at the Lobby Bar will continue but I will try my best to make these last few rounds enjoyable.
Make mine a double, George.
1 For those new patrons to the Lobby Bar, George the Bartender’s workers’ compensation case involves an injury to his elbow, lateral epicondylitis (tennis elbow), sustained from the repetitive serving of martinis to me. If there ever was an admitted industrial injury, this is it!
2 A Beefeater’s martini, straight up, is best served at 38˚ Fahrenheit.
3 Much like Mary Poppins’s seemingly bottomless carpetbag (of Disney fame) and Hermione Granger’s bottomless handbag (of Harry Potter fame), my briefcase possesses magical powers, granting me the ability to pull out any decision at a moment’s notice. A copy of Rice can be obtained by email request.