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Apportionment to Genetics

The 3rd District Court of Appeals has ruled causation for an injured worker’s permanent disability can be apportioned to genetics.

The case in the decision was a 29 year old police officer, Christopher Rice, who pled a cumulative trauma injury to his neck. The claim was accepted by his employer, the City of Jackson and the medical-legal process began with the Qualified Medical Evaluator, Dr. Sloane Blair.

Dr. Blair diagnosed Mr. Rice with degenerative disc disease and opined that the injury was due predominately to his personal history including genetic causation (49%) and 17% to his employment with the City of Jackson, 17% his previous employment history and 17% his personal injuries. She supported her argument with a recent article in the North American Spine Society and the American Academy of Orthopedic Surgeons that described how heredity and genetics play a significant part in the degenerative disease of the spine.

The Workers’ Compensation Judge used the apportionment percentage applied by Dr. Blair’s report and reduced the permanent disability. But, the WCAB overturned the decision.

In part, the WCAB overturned the WCJ’s decision due to Dr. Blair’s report failing to meet the standard based on the 2005 en banc decision of Escobedo v. Marshalls which requires a doctor to explain why and how that factor was causing the injured worker’s disability. The WCAB also went on to dispute that apportionment could be of disability to “impermissible immutable factors” such as gender, race and age.

The 3rd District Court of Appeals disagreed with the WCAB and found that Dr. Blair’s report had properly apportioned the causation of Mr. Rice’s disability. The court found that Dr. Blair’s report was substantial medical evidence and Mr. Rice’s disability was caused predominately by genetics and partially by the industrial injury.

At this time, it has not been determined if the appeal will go up to the Supreme Court of California.

What this means to you:

It is imperative to subpoena prior medical records to garner documentation for apportionment of permanent disability to nonindustrial conditions or diseases, a pre-existing disability or a post-injury disabling event which can now include heredity and genetics.

Interactive Process

Both the ADA and California FEHA require an employer to engage in the interactive process with the employee to identify and implement appropriate reasonable accommodations when an employer becomes aware of the need for accommodation. The need for an accommodation arises anytime an employee who is a qualified individual with a disability is unable to perform the essential functions of the job without an accommodation.

In the case of Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001), the 9th Circuit, interpreting the ADA and FEHA, found that the duty to accommodate is a “continuing” one that is “not exhausted by one effort” (quoting McAlindin v. County of San Diego, 192 F. 3d 1226, 1237 (9th Cir., 2000). The 9th Circuit also referred to the EEOC Enforcement Guidance on Reasonable Accommodation that an employer must consider “each request for reasonable accommodation” and must consider alternatives if an accommodation is ineffective. In the Humphrey case the employee had requested a particular accommodation (when the first accommodation was not working) and the employer, rather than exploring other possible accommodations, terminated the employee as the suggested accommodation violated a separate company policy.

Based on this case, the EEOC Enforcement Guidance and the FEHA regulations, the accepted guidance for clients is to ensure that the interactive process is an ongoing effort to attempt to find one or more reasonable accommodations. This means that each time either the employee requests a new accommodation, the employer otherwise becomes aware of the need for a new or different accommodation, or the underlying reason for the accommodation (changes in restrictions) changes, the employer (and employee) must engage in the interactive process.

From an employment law perspective clients are advised to engage in the process and make determinations based on the most restrictive information from any doctor. That way the employer does not have the problem of having required an employee to work if a health care provider either states that the employee should not be working at all or if the employee may only work with certain restrictions.

What this means for you:

Generally, with regard to Workers’ Compensation claims, the client is advised to engage in the interactive process when the employee is first given a clearance (usually from the PTP) to return to work with restrictions. The process needs to be repeated if: the restrictions change; an accommodation becomes ineffective; or when the employee has permanent restrictions. So, in most Workers’ Compensation cases there will be at least two interactive process reviews – when there are temporary restrictions (if any) and when there are permanent restrictions (if any).

New Faces at GMK

GMK is pleased to announce new Associates to the firm:

Los Angeles Office


Arin R. Scapa received her Bachelor of Arts degree from the University of California, Irvine in 2004 and her Juris Doctor degree from the University of La Verne College of Law in 2010.

Prior to joining Goldman, Magdalin & Krikes, LLP, Ms. Scapa worked as a Staff Attorney for The Hartford Financial Services Group, Inc. (The Hartford). It was with The Hartford that Ms. Scapa began practicing insurance defense in the field of workers’ compensation, after having previously practiced criminal law. Ms. Scapa worked for the United States Attorney’s Office for the Central District of California in the Criminal Division’s Major Frauds Section. There, Ms. Scapa worked exclusively on complex fraud cases, most of which had losses exceeding several million dollars; In addition, Ms. Scapa was a law clerk for the Los Angeles County District Attorney’s Office, a paralegal for a private criminal defense firm, and an intern for the Orange County Public Defender’s Office.

Ms. Scapa is currently serving on the Board of Governors of the Women Lawyers Association of Los Angeles.

Ms. Scapa is a member of the State Bar of California. She is admitted to practice before all California courts, as well as before the United States District Court for the Central District of California.

Bay Area Office


Stephen A. Vaccaro received his Bachelor of Science degree in Business Administration from California State University at Long Beach in 2002. He subsequently began a career in workers' compensation insurance investigations in the San Francisco Bay Area, which ultimately led him to pursue a legal education in 2009.

After receiving his Juris Doctor degree from Concord Law School in 2014, Mr. Vaccaro was admitted to practice law in the State of California. He now practices workers' compensation defense law with GMK’s Bay Area office.

Sacramento Office


Juli Miles received her Bachelor of Arts Degree from California State University, Sacramento in 1983 and Juris Doctorate from Lincoln Law School in 1991.

Ms. Miles started her career in criminal law and civil litigation prior to practicing workers’ compensation defense. Before joining Goldman, Magdalin and Krikes, LLP, Ms. Miles worked in Workers’ Compensation Law for 17 years with one of the largest Workers’ Compensation defense firms in the United States.

Ms. Miles practices all aspects of workers’ compensation defense, including 132(a) discrimination, Serious and Willful Misconduct, coverage, public entity and appellate issues. Ms. Miles has argued a case before the California Court of Appeals.

Welcome to GMK- Arin, Stephen and Juli.

GMK Webinar

GMK is pleased to announce the first 2017 Webinar:

Friday, April 7th
• 9:00 am-10:00 am PST
• Topic: Mitigating Your Liability for CT Claims
• Presenter: Rick Goldman

To participate in this Webinar, please complete and return this form to before March 27th.

If you have previously completed and returned this form, you are automatically signed up to receive the Webinar/Conference Call information.

A separate invitation email will be sent to you with the Conference Call information by March 27th.


GMK is bringing our Annual GMK Seminar presentations and training to our clients with face-to-face training in your office.

We have over 25 client presentations confirmed for 2017. These training sessions are customized to client preferences. Our presentations generally last one hour, but depending on the requested topics to be covered some will take up to three hours. Continuing education credits are available for the training, just like it has been in the past for the annual GMK Seminars. We have numerous suggested topics that we have prepared for training which are attached here for your review. GMK can tailor a presentation on the topic of your choice. These training sessions provide one-on-one training with GMK attorneys.

If you haven't already signed up for GMK’s face-to-face training, please do so now by sending an email to Joy Tolladay to schedule your personalized training with GMK.

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