City of Jackson v. WCAB (Rice) 82CC437 (Rehearing denied 05/18/2017), which held that apportionment to genetics is permissible in certain instances, sent shockwaves through the workers’ compensation legal community when it was decided earlier this year.
In the Rice case, the Court held that a QME report apportioning disability to nonindustrial, genetic factors could constitute substantial medical evidence.
The QME report in Rice was examined by the Court, which determined that the report was substantial evidence, and that the QME had properly apportioned disability to genetics. In this case, only 17% of the applicant’s neck, shoulder, hand, and arm disability was caused by his work activities as a police officer; 49% of his disability was attributed by the QME to genetics.
The QME’s reporting was found by the Court to be valid and substantial even though applicant argued that there was no evidence in his family history of cervical degenerative disc disease and that there is no genetic test for degenerative disc disease.
Senator Steven Bradford (D-Gardena) has proposed SB 617 to eliminate the element of genetics in medical-legal causation determinations. Labor Code Section 4665 would state, “Notwithstanding any other law, including but not limited to section 4663, heredity and genetics shall be excluded as bases of causation for purposes of determining the apportionment of permanent disability.” As of August 21, 2017, the bill was re-referred back to the rules committee.
The California Legislature website can be used to follow updates on Legislation.
Boehm will keep you posted.