Apportionment to Culture or Ethnicity; Slippery Slope?

Saturday, August 12, 2006 | 0

The following is an edited discussion that occurred recently in the WorkCompCentral Professional Forums the editors felt would be of interest to the community. It has been reproduced here, edited for clarity and organization.

Q - I realize that pretty much nothing is actually clear about how LC4663 apportionment will work once a body of case law has developed, but in the meantime, people have to write reports. That being said, what do people think about the possibility of apportioning to factors like ethnicity and culture?

For example, certain ethnic groups have higher rates of cardiovascular disease. Should apportionment be made to ethnicity in these cases, since it is a risk factor? Or is this simply a statistical relationship that cannot be considered to have a scientifically valid causal relationship?

In a number of cultures, one of the major symptoms of depression is somatization - the reporting of non-anatomical pain, or what used to be called "psychogenic" pain, rather than sad mood, suicidal ideation, and the other standard DSM symptoms. Let's take a patient from one of those cultures whose meets the diagnostic criteria for Major Depression but whose main focus and main complaint is severe chronic pain without apparent physical cause, positive Waddell's signs, and nonanatomic distribution. If the depression is industrial, is the pain industrial, too - or should some part of the pain be apportioned to the patient's cultural background?

A1 - I think you are getting "creative". Start thinking along those lines, you could apportion loss of upper extremity capacity to the female gender since they generally lack the upper body strength of men. If I become an alcoholic, can I apportion part of this to my Irishness? How about my temper? Pretty soon you will be firmly into Archie Bunker territory. I am sure all involved would frown on these kind of stereotypes, particularly the judges. And non-anatomical pain syndromes aren't really ratable anyway, see p. 571 AMA guides, the most you can add on for pain anyway is 3 percent. Depression and mental disorders are, and AMA and the GAF method allow a lot more creative loopholes anyway. Of course, then you have to deal with l.c. 3208.3 and make the case that the impairment in a reactive episodic mood disorder is permanent and disabling.

A2 - Contrary to the wildest fantasies of IC's, LCS 4663 ought not to be read as a license to apportion to culture, ethnicity, gender, or age. Such invidious discrimination would fly in the face of the remedial purpose of the WC system. I mean, talk about a slippery slope ... The trouble is that is exactly where the train is headed until the appellate courts put a halt to all this rubbish.

A3 - We had this conversation in May of last year, albeit on a different thread regarding "air pollution" and apportionment to the environment. Interestingly enough, in reviewing posts from last May, I see no distinction between this and the example of the absurd thought of apportionment to ethnicity. Yup, the issue of apportionment is a slippery slope. In fact, I can even see a sophistic DA or DQME attempting to find apportionment to freckles a substantial basis for a reduction in industrial PD:

The decision of the WCAB in the Escobedo case has thrown open the door to any "far-fetched hypothetical" such as the one you have mentioned.

As pointed out by the Escobedo en banc panel, in addressing LC 4663(c), "The language stating that apportionment may be based on "other factors both before and subsequent to the industrial injury" does not limit what non-industrial factors may be considered as a cause of permanent disability purposes of apportionment. Thus, this language appears to require apportionment based on any "other [non-industrial] factor," either pre- or post-injury." (emphasis in original)

Hmmmm, the term "any other non-industrial factor" is indeed open-ended, but is it unlimited? The Escobedo panel addresses this issue by stating, "In addition, the "other factors" now may include pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial medical evidence establishing that these other factors have caused permanent disability."

It appears as though the documented "air pollution" in your hypothetical could easily be considered "substantial medical evidence establishing that these other factors have caused permanent disability" as discussed in Escobedo if the employee claims a respitory industrial injury, and accordingly, could indeed be apportionable.

But wait ----- as I recall, there have been EBM studies that concluded African-Americans (or whatever the politically correct definition for a negro, or black person, is defined) generally have higher blood pressure (HBP) when compared to caucasians (or whatever the politically correct definition is for a white person) of the same age and gender. According to a logical interpretation of the Escobedo logic, "this language appears to require apportionment based on any "other [non-industrial] factor," either pre- or post-injury."

Following this line of reasoning, if an African-American employee filed a claim for an industrial cardiac condition, the door is now open for apportioning at least some of the injury to the fact the employee is more at risk to develop cardiac conditions simply because of the color of his/her skin ----- after all, Escobedo certainly requires "apportionment based on any other [non-industrial] factor."

Also, as I recall, there have been some EBM studies that conclude women are more at risk for osteoarthritic conditions then are their male counterparts of the same age, regardless of race or ethnicity.

Following the Escobedo line of reasoning that allows "apportionment based on any other [non-industrial] factor," if an older female trips over her own shoelaces while on the job, and sustains an injury that requires a total hip replacement, the employer could apportion a percentage of the permanent disability to the fact the employee was an older female ----- and that if the employee was a male of the same age, the industrial injury would not have resulted in the need for a total hip replacement.

Are these hypothetical examples any more far-fetched than "air pollution" in your example? I think not.

As stated previously, the en banc panel in Escobedo explained, "The language stating that apportionment may be based on 'other factors both before and subsequent to the industrial injury' does not limit what non-industrial factors may be considered as a cause of permanent disability purposes of apportionment. Thus, this language appears to require apportionment based on any "other [non-industrial] factor," either pre- or post-injury."

"Any other factors" certainly can include air pollution, race, ethnicity, gender, genetics, or propensity ----- as long as there is "substantial medical evidence establishing that these other factors have caused permanent disability. The EBM studies indicating a certain race generally has HBP more than a different race, or that a certain gender is more at risk for developing a disease at an earlier age, do indeed fully constitute "substantial medical evidence" according to the Escobedo logic.

Gee whiz, I was born with red-hair and freckles and this is readily ascertainable simply by looking at me. When I spend even an hour in the full sun, I get quite sun-burned. Because of my red-hair and freckles and the ease with which I get sun-burned, I am probably more at risk for developing melanoma than a "normal" person, whatever a "normal" person is defined as being.

If my work required me to spend long hours in the sun, and I develop melanoma, is my genetically inherited red-hair and freckles one of the "any other factors" that is apportionable pursuant to the Escobedo logic?

Red-hair and freckles can be considered to be "any 'other [non-industrial] factor,'" and the Escobedo court did indeed opine, "section 4663 does not limit the types of 'other factors' that may be considered as a non-industrial cause of permanent disability."

The Escobedo decision is indeed a giant leap that has its footing on a slippery slope. I see no bottom to this "slippery slope" as long as any of the "far-fetched hypothetical" EBM studies are scientifically-based and the physician opining on apportionment only has to set forth the "approximate" percentage apportioned out to non-industrial pathology.

A4 - Thanks for the replies. Perhaps I should explain this isn't entirely hypothetical. I just finished reading through several psych and neuropsych QME reports over the course of the last 8 years on one case. The pre-SB899 reports all discussed the fact that the applicant is a poorly-educated woman born and raised in rural Mexico in a very poor family.

There have been 2 areas of disagreement:

(1) How much of her psychiatric disability to apportion to Major Depression and how much to Pain Disorder (both DSM diagnoses), since she comes from a culture where the syndrome of "nervios" - a combination of the usual Major Depression symptoms with generally nonanatomic pain - has been clearly identified by research, and the DSM and lots of research show that somatization is a common depressive symptom in Latino cultures.

(2) How to deal with the fact that she had pre-existing risk factors - her culture and socioeconomic group - which played a key role in her developing Pain Disorder when under emotional stress with industrially-caused depression (admitted by both sides). The applicant side said her culture and socioeconomic class caused a tendency to develop Pain Disorder in response to stress, but since there was no pre-existing disability, there was no apportionment (pre 899). The defense side said the same thing but argued that being raised in a poor rural Mexican family meant she would have to have developed Personality Disorder NOS since she would have personality traits and structures that would by dysfunctional in the open American labor market, which caused her partial disability her whole adult life, and that trumps her culture and poverty.

Fortunately, I don't have to write the AME report on this one. I see major flaws in the arguments from both sides, but there are 4 QME's (two originals on each side and 2 replacements for dead and retired ones) who discussed her culture and socioeconomic status as "causes." That's going to be interesting.

I certainly hope that the appellate courts would toss that kind of apportionment out the window, but as noted, Escobido threw the gates wide open to this kind of argument, frightening as it is. (Apportion to being non-white, poor, having limited education - just add apportionment whether or not the applicant has accepted Jesus Christ as his or her personal savior and we'll have reached Conservative Heaven on Earth.)

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