ADJ14258730 · October 13, 2023

The WCAB found that the QME's opinion was speculative and did not establish substantial evidence that the injury arose out of and in the course of employment. The WCJ's finding was rescinded and the case was remanded for further development of the medical record.

From the decision · page 5The issue we face in the instant case is whether substantial evidence supports the finding that the applicant sustained injury AOE/COE. On the record before us, substantial evidence does not support the finding that the injury occurred AOE/COE. QME Dr. Zagelbaum concluded that "If it can be confirmed and substantiated that the applicant's job created environmental conditions which causally contributed to his encountering exposure to the coronavirus which resulted in his developing COVID-19 infection in early December 2020 and contributed to his pre-existing long- term liver disease and triggered hospitalization several days later, then his death would be (at least 1%) work-related." (Ex. 5, p. 97, emphasis added.) However, Dr. Zagelbaum did not make any conclusion as to how likely it was that his job created environmental conditions which causally contributed to his encountering exposure to Covid-19. This conclusion does not support a finding of AOE/COE as it is based on surmise, speculation, conjecture or guess. (See Hegglin v. Workmen's Comp. Appeals Bd., supra, 4 Cal.3d at p. 169.)

QME Dr. Zagelbaum did not conclude how likely it was that the job created environmental conditions causing Covid-19 exposure.

Favours Defendant prevailed

This made the medical opinion speculative and insufficient to support a finding of injury AOE/COE.

From the decision · page 5The issue we face in the instant case is whether substantial evidence supports the finding that the applicant sustained injury AOE/COE. On the record before us, substantial evidence does not support the finding that the injury occurred AOE/COE. QME Dr. Zagelbaum concluded that "If it can be confirmed and substantiated that the applicant's job created environmental conditions which causally contributed to his encountering exposure to the coronavirus which resulted in his developing COVID-19 infection in early December 2020 and contributed to his pre-existing long- term liver disease and triggered hospitalization several days later, then his death would be (at least 1%) work-related." (Ex. 5, p. 97, emphasis added.) However, Dr. Zagelbaum did not make any conclusion as to how likely it was that his job created environmental conditions which causally contributed to his encountering exposure to Covid-19. This conclusion does not support a finding of AOE/COE as it is based on surmise, speculation, conjecture or guess. (See Hegglin v. Workmen's Comp. Appeals Bd., supra, 4 Cal.3d at p. 169.)

If it can be confirmed that the job created environmental conditions contributing to Covid-19 exposure and death, then the death would be at least 1% work-related. However, he did not conclude how likely this was, making the opinion speculative.

The opinion was speculative and did not establish causation with reasonable medical probability.

From the decision · page 2On March 20, 2022, the Qualified Medical Evaluator (QME) with a specialty in internal medicine, Dr. Gary Zagelbaum, issued a report. He concluded that:

South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291

The employee bears the burden of proving injury AOE/COE by preponderance of the evidence.

Applied to the injury AOE/COE issue.

From the decision · page 3The employee bears the burden of proving the injury arose out of and in the course of employment by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a), 3202.5.)1 Whether an employee's injury arose out of and in the course of employment is generally a question of fact to be determined in light of the particular circumstances of the case. (Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346, 353 [67 Cal.Comp.Cases 51].) The phrase "in the course of employment" "`ordinarily refers to the time, place, and circumstances under which the injury occurs.'" (Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644, 651 [63 Cal.Comp.Cases 253], citing Maher v. Workers' Comp. Appeals Bd. (1983) 33 Cal.3d 729, 733.) An "employee is in the `course of his employment' when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do." (Latourette, supra, at p. 651.) For the injury to arise out of employment, it must " `occur by reason of a condition or incident of [the] employment.' [citation] That is, the employment and the injury must be linked in some causal fashion. [citation]" (Id. at p. 651.)

QME opinion was speculative and did not establish causation with reasonable medical probability.

From the decision · page 5The issue we face in the instant case is whether substantial evidence supports the finding that the applicant sustained injury AOE/COE. On the record before us, substantial evidence does not support the finding that the injury occurred AOE/COE. QME Dr. Zagelbaum concluded that "If it can be confirmed and substantiated that the applicant's job created environmental conditions which causally contributed to his encountering exposure to the coronavirus which resulted in his developing COVID-19 infection in early December 2020 and contributed to his pre-existing long- term liver disease and triggered hospitalization several days later, then his death would be (at least 1%) work-related." (Ex. 5, p. 97, emphasis added.) However, Dr. Zagelbaum did not make any conclusion as to how likely it was that his job created environmental conditions which causally contributed to his encountering exposure to Covid-19. This conclusion does not support a finding of AOE/COE as it is based on surmise, speculation, conjecture or guess. (See Hegglin v. Workmen's Comp. Appeals Bd., supra, 4 Cal.3d at p. 169.)