Apportionment and Genetic Causation

Despite all of the careful precautions and preparations, work-related injuries are an inevitable part of owning a business. Employers always reduce risks to their employees when possible, but accidents happen. After an employee suffers a work-related injury and files a claim for workers’ compensation, it is possible that the medical documents will reveal the employee has a pre-existing injury or condition that was aggravated by the work-related injury. When this happens, the portion of the disability attributable to the pre-existing condition must be apportioned. Apportionment means that a medical professional will make a determination on how much of the worker’s injury and disability is attributable to the work-related injury and how much is attributable to the pre-existing condition. A recent case before the Workers’ Compensation Appeals Board dealt with the issue of apportionment and genetic conditions.

In City of Jackson v. WCAB (Christopher Rice), a police officer who had served on the force for five years filed a claim, stating that repetitive bending and twisting of his neck while on the job had resulted in an injury, and was the cause of pain to his neck, shoulder, arm, and hand. Medical examinations and x-rays revealed the officer had a degenerative disc disease, cervical radiculopathy, and cervical disc disease. The QME report indicated that genetic issues were a causative factor for this injury, and apportionment was appropriate. The trial judge apportioned 49% of the injury to the officer’s genetic condition, but the WCAB reversed that decision. The court ruled that “finding causation on applicant’s ‘genetics’ opens the door to apportionment of disability to impermissible immutable factors.”  The court found that relying on the QME report for apportionment was inappropriate in this case without specific, identifiable factors. The WCAB’s decision was appealed by the employer and was heard by the Court of Appeals. The Court of Appeals determined there was “no relevant distinction” between allowing apportionment due to non-industrial pathological changes and allowing apportionment due to a degenerative genetic condition. The court accordingly held that apportionment was appropriate in this case, even though it was based on a genetic condition. The court did not address whether certain anti-discrimination statutes prohibited apportionment due to genetic condition, as the issue was not raised in the lower court.

Apportionment is just one of many complicated issues in workers’ compensation Contact us today at (714) 516-8188 to talk about claims facing your business.

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