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City of Jackson v. Workers' Compensation Appeals Board

California Court of Appeals, Third District, Sacramento

April 26, 2017

CITY OF JACKSON, Petitioner,

         ORIGINAL PROCEEDING; petition for writ of review. Annulled and remanded with directions. WCAB No. ADJ8701916

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

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

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

          No appearance for Respondent Workers' Compensation Appeals Board.

          William A. Herreras 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.


         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 ...

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