Genetic testing as a defense to compensability remains a ‘tough sell’

Genetic testing has been used to defend against a workers compensation claim — usually unsuccessfully — but in some cases, it can lead to cost savings in a claim, experts say.

“In a very narrow sense, if you’re using (genetic testing) as a defense in workers comp, it’s not appropriate in the vast majority of cases, if at all,” said Dr. Robert Goldberg, chief medical officer and senior vice president for Healthesystems LLC in Tampa, Florida.

Genetic testing fails to show how external factors may affect an individual, he said.

But the challenge is getting the claimant to agree to the testing, said Bert Randall, president of Baltimore law firm Franklin & Prokopik P.C.

“If a claimant’s attorney believes a genetic inquiry … would yield a possible defense as to compensability, obviously the easy answer is to not volunteer or agree to the testing,” said Mr. Randall.

“But once there’s a compensable injury, if the use of a genetic examination is designed for treatment … getting a better picture of what an employee’s overall health is, one might get more claimants and their attorneys to volunteer for those issues. But because of the compensability concern, I think it’s going to be a tough sell, he said.”

In the future, technological advances may have an effect on costs and usage, Mr. Randall said.

“I think quite possibly with advancements in technology that this might be an area where the overall cost driver may become more favorable and user friendly (to genetic testing) across the board,” he said. “People are examining what the efficacy is vs. the cost vs. the legal concerns.”

Genetic testing was successfully used in workers comp defense in the April 2017 decision in City of Jackson v. Workers’ Compensation Appeals Board, when the California Court of Appeals, 3rd District, held that a worker’s heredity and genetics could be used to consider apportionment of causation for his degenerative disease.

“If there’s going to be significant usage of genetic testing, that (defense) element in the workers comp scheme I think is going to be addressed,” said Mr. Randall.

“Simply because people or a group of people may have predispositions toward various conditions doesn’t mean they’re going to be excluded from workers comp benefits should they contract (an illness or injury). That impacts a lot of the apportionment discussions.”

Another question that has to be addressed in this context is whether a worker may be compelled to take a test — or reveal results from a test that already took place — to receive compensation for an occupational illness.

Firefighter occupational illness presumption laws in several states, including Wyoming and Idaho, specifically exclude workers compensation coverage of occupational breast cancer if the individual tests positive for the BRCA1 or BRCA2 gene.

“Unfortunately, we’re in a lot of uncharted territory,” said Mr. Randall.