ADJ14362966 · February 18, 2025

The WCAB found that the WCJ's original decision was not supported by substantial evidence because the QME's medical opinion was limited to a single service call and did not address the totality of the evidence; the record was incomplete and required further development to determine industrial causation of COVID-19.

From the decision · page 1Defendant seeks reconsideration of the November 12, 2024 Findings of Fact and Order (F&O), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as an Energy Technician from November 1, 2020 to November 29, 2020, sustained industrial injury in the form of COVID-19.

QME Dr. Alonso's medical opinion was limited to a single service call on November 14, 2020 and did not address cumulative exposure.

Favours Defendant prevailed

This limitation meant the medical record was incomplete and did not constitute substantial evidence to support the WCJ's finding of industrial causation.

From the decision · page 5Initially, we note that the QME's stated understanding of the scope of his inquiry is limited to a single service call rendered by applicant on November 14, 2020. (Ex. 4, Report of Lazaro Alonso, M.D., dated April 9, 2024, at p. 7; Ex. 3, Transcript of the Deposition of Lazaro Alonso, M.D., dated June 12, 2024, at p. 20:11.) Given that applicant's claimed cumulative injury spans

Applicant and spouse testified credibly that applicant had limited outside interactions and was the first in the household to develop COVID-19 symptoms.

Favours Applicant prevailed

This testimony supported the possibility of industrial causation but was insufficient alone without complete medical evidence.

From the decision · page 22:12.) The WCJ heard testimony from applicant, who testified that in November 2020 he worked as an Energy Tech and would visit eight to thirteen orders a day and spend an average of 30 to 40 minutes with each customer. (Id. at p. 3:14.) On November 12, 2024, the WCJ issued the F&O, determining that applicant "sustained an injury arising out of and in the course of employment in the form of Covid-19." (Finding of Fact No. 1.) The WCJ's accompanying Opinion on Decision reviewed the testimony of applicant and applicant's spouse, who testified to limited interactions with persons outside the household during the month of November, 2020. In addition, the WCJ cited the QME's opinion that symptoms of COVID-19 "start to show three to five days from exposure." (Opinion on Decision, at p. 2.) The WCJ constructed a timeline demonstrating that applicant was the first person in his household to contract COVID-19 symptoms and further noted the credible testimony of applicant's spouse that applicant "did not go out with any friends or co-employees after work." (Ibid.) The WCJ concluded that based on the testimony of applicant's spouse and the reports of QME Dr. Alonso, applicant contracted COVID-19 at work. (Ibid.)

Limited to evaluating whether applicant contracted COVID-19 during a specific service call on November 14, 2020; found no substantial medical evidence of occupational exposure during that call; noted applicant's testimony was unreliable and rehearsed; could not opine on other possible exposures.

QME's opinion was limited to a single service call and did not address cumulative exposure; the WCAB found the medical record incomplete and requiring further development.

From the decision · page 2FACTS Applicant claimed injury in the form of COVID-19 while employed as an Energy Technician by defendant Southern California Gas Company from November 1, 2020 to November 29, 2020. Defendant denies liability for the claim. The parties have selected Lazaro Alonso, M.D., as the Qualified Medical Evaluator (QME) in internal medicine. In a report dated September 7, 2022, Dr. Alonso noted applicant's assertion that he was exposed to the COVID-19 virus during a specific service call to a residential address where the resident was suffering from COVID-19. (Ex. 1, Report of Lazaro Alonso, M.D., dated September 7, 2022, at p. 2.) Following the QME's review of the specifics of this interaction, estimated to have lasted 15-20 minutes, the QME opined, "[k]eeping in mind the proximate distance needs for contracting COVID-19, and keeping in mind this interaction did not happen in a totally enclosed indoor setting, it was for a very short period of time (since customer did not remain there during entire service call), there's no substantial medical evidence that an occupational exposure to COVID took place during this encounter." (Id. at p. 8.) On October 2, 2024, the parties proceeded to trial on the sole issue of injury arising out of and in the course of employment (AOE/COE). (Minutes of Hearing and Summary of Evidence (Minutes), dated October 2, 2024, at p.

Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274

Substantial evidence standard for Board decisions

The Board must base its decisions on substantial evidence considering the entire record, not isolated segments.

From the decision · page 4II. It is well established that any award, order, or decision of the Board be supported by substantial evidence in the light of the entire record. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280-281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) Accordingly, our inquiry cannot rely solely on

Bethlehem Steel Co. v. Industrial Acci. Com. (George) (1943) 21 Cal.2d 742

Reasonable probability and special exposure for communicable disease industrial injury

To establish industrial causation for communicable disease, employee's risk must be materially greater than the general public's.

From the decision · page 6In evaluating an allegation of industrial exposures to a communicable disease, "it must affirmatively appear that there exists a reasonable probability that the employee contracted the disease because of his employment. [Citations.] It must further be shown that the disease contracted was not merely a hazard of the community but that the employee was subjected to some special exposure in excess of that of the commonalty. In the absence of such showing, the illness of the employee cannot be said to have been proximately caused by an injury arising out of his employment or by reason of a risk or condition incident to the employment. [Citations.] The employee's risk of contracting the disease by virtue of the employment must be materially greater than that of the general public, i.e., the injury must be a natural or a reasonably probable result of the employment or of the conditions thereof." (Bethlehem Steel Co. v. Industrial Acci. Com. (George) (1943) 21 Cal.2d 742, 744 [8 Cal. Comp. Cases 61, 62-63] (George).)

Applicant's and spouse's credible testimony about limited outside interactions and workplace exposures

From the decision · page 22:12.) The WCJ heard testimony from applicant, who testified that in November 2020 he worked as an Energy Tech and would visit eight to thirteen orders a day and spend an average of 30 to 40 minutes with each customer. (Id. at p. 3:14.) On November 12, 2024, the WCJ issued the F&O, determining that applicant "sustained an injury arising out of and in the course of employment in the form of Covid-19." (Finding of Fact No. 1.) The WCJ's accompanying Opinion on Decision reviewed the testimony of applicant and applicant's spouse, who testified to limited interactions with persons outside the household during the month of November, 2020. In addition, the WCJ cited the QME's opinion that symptoms of COVID-19 "start to show three to five days from exposure." (Opinion on Decision, at p. 2.) The WCJ constructed a timeline demonstrating that applicant was the first person in his household to contract COVID-19 symptoms and further noted the credible testimony of applicant's spouse that applicant "did not go out with any friends or co-employees after work." (Ibid.) The WCJ concluded that based on the testimony of applicant's spouse and the reports of QME Dr. Alonso, applicant contracted COVID-19 at work. (Ibid.)