Christopher Rice worked for the City of Jackson 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 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. 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.
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 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.”
The ALJ found the City had carried its burden of showing apportionment as to 49 percent attributable to genetic factors, and Rice filed for reconsideration, The Board granted 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. . . . ” The Court of Appeal reversed the WCAB in the published case of City of Jackson v WCAB.
Since the enactment of Senate Bill No. 899 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.
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 . . . .”
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 Order Granting Reconsideration was annulled, and the case remained to the Board to deny reconsideration and reinstate apportionment.