ADJ13315589 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; Findings and Order of May 23, 2022 rescinded; matter returned to WCJ for further proceedings.

Defendant sought reconsideration of the Findings and Order issued by the WCJ on May 23, 2022, which found injury AOE/COE from COVID-19 resulting in death; the WCAB granted reconsideration, rescinded the F&O, and returned the matter to the WCJ for further proceedings.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

AOE/COERemandedinternal organs

The WCAB found no substantial evidence on injury AOE/COE causation in the record and granted reconsideration to develop the record further, rescinding the prior Findings and Order.

From the decision · page 1Defendant seeks reconsideration of the Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on May 23, 2022, wherein the WCJ found in pertinent part that the applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) in the form of COVID-19, resulting in injury to his internal organs and causing his death.1

The facts that decided it

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 3600(a)

Workers' compensation liability exists for injury arising out of and in the course of employment without regard to negligence (Labor Code section 3600(a)).

The Board reviewed the requirement that the injury must be causally linked to employment and that the employment be a contributing cause.

From the decision · page 2Labor Code section 3600, subdivision (a) provides that workers' compensation liability "shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment..." The California Supreme Court has explained that it is the applicant's burden to establish that industrial causation is reasonably

Labor Code section 3212.86

Presumption of compensability for COVID-19 infections under Labor Code section 3212.86 does not apply because death occurred before March 19, 2020.

The Board found the presumption inapplicable due to the date of death prior to the presumption start date.

From the decision · page 3We agree with the WCJ that the Labor code section 3212.86 presumption is not applicable in this matter because applicant's spouse passed away on March 16, 2020 (prior to the March 19,

McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408

Applicant must prove industrial causation by reasonable probability, not scientific certainty.

The Board emphasized the burden of proof standard for causation in infectious disease cases.

From the decision · page 4In light of the fact that neither of the above mentioned presumptions is applicable, applicant must show, at a minimum, that it is reasonably probable that applicant's spouse's employment with defendant was a causative factor in his development of COVID-19, and that the COVID-19 was a causative factor as to his death. (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660].) "The applicant in a workers' compensation proceeding has the burden of proving industrial causation by a `reasonable probability.' (citation) That burden manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1700 § 1701 [58 Cal.Comp.Cases 313].)

ADJ13315589 · August 12, 2022

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

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