ADJ16043082 · December 18, 2023

The employer failed to provide substantial evidence to rebut the presumption that the applicant's COVID-19 infection arose out of and in the course of employment, as the PQME supported industrial causation and employer witnesses' testimony was insufficient to exclude non-Shasta County exposures.

From the decision · page 4The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact. (Evidence Code section 606; City of Long Beach v. WCAB (Garcia) 126 Cal. App. 4th 298, 314.) Once the facts giving rise to the presumption of industrial injury have been proven, the burden of negating the presumption falls on the employer. The defendant must establish that the COVID 19 illness did not arise out of and in the course of employment. To do that, the defendant must show

PQME Dr. Anderson opined the applicant likely caught COVID-19 at work, not from her daughter

Favours Applicant prevailed

This expert opinion supports the presumption of industrial injury and undermines the employer's rebuttal evidence

From the decision · page 4The parties used Dr. Scott Anderson as a PQME, and this evaluator wrote one report and was deposed on one occasion. After clarification at deposition of some erroneous history the doctor had noted in his written report, he found that the applicant had likely caught the virus from work, and not from her daughter.

Employer witnesses testified no known COVID-19 positive Shasta County employees in August 2021

Favours Defendant prevailed

Their testimony was insufficient to exclude exposure from non-Shasta County employees and the public, so did not rebut the presumption

From the decision · page 5Petitioner next argues that the two employer witnesses who testified at trial establish through their sworn testimony that there were no Shasta County employees in August of 2021 that they were aware of that were COVID 19 positive. This testimony is unrebutted, and we may treat it as truthful and as showing that there was no one employed by Shasta County that these two county employees knew of with a COVID 19 infection during the relevant timeframe of August of 2021.

Applicant had extensive exposure to non-Shasta County employees and the public during August 2021

Favours Applicant prevailed

This exposure provided a plausible work-related source of infection, supporting the presumption

From the decision · page 5However, the presumption of 3212.87 was not made law only to protect public employees from infection through other employees. On the contrary, the idea was to lower the burden of proof for essential employees that "keep the lights on, water running, food stocked, and treat our ill and injured." The applicant's job required her not just to work with other county employees, but with the public, as well as other public employees. In this case, that specifically included interaction with about 40 other officers from all over the state at the Sacramento seminar, with about 16 candidates for employment with the county, and with the public and other public service providers during the Dixie Fire, all in the month of August 2021. Because of this rather extensive exposure to non-Shasta County employees during the critical month of August 2021, the testimony of the two county witnesses does not establish that the applicant did not get her COVID infection from her job, only that perhaps a slice out of the pie of potential work related exposure vectors can be removed. This testimony therefore does not serve as sufficient substantial evidence to rebut the presumption.

The applicant likely caught the COVID-19 infection from work, not from her daughter, even after correction of erroneous history.

The PQME maintained the opinion of industrial causation after deposition correction and did not attribute infection to the daughter.

From the decision · page 4The parties used Dr. Scott Anderson as a PQME, and this evaluator wrote one report and was deposed on one occasion. After clarification at deposition of some erroneous history the doctor had noted in his written report, he found that the applicant had likely caught the virus from work, and not from her daughter.

LC section 3212.87

Presumption of industrial injury under LC section 3212.87

Once the facts giving rise to the presumption of industrial injury have been proven, the burden of negating the presumption falls on the employer.

From the decision · page 4The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact. (Evidence Code section 606; City of Long Beach v. WCAB (Garcia) 126 Cal. App. 4th 298, 314.) Once the facts giving rise to the presumption of industrial injury have been proven, the burden of negating the presumption falls on the employer. The defendant must establish that the COVID 19 illness did not arise out of and in the course of employment. To do that, the defendant must show

Burden of proof on employer to provide substantial evidence to rebut presumption

Defendant must produce substantial evidence of COVID-19 infection from a source outside of work to rebut presumption.

Applicant's testimony consistent with contemporaneous medical records despite cognitive impairment

From the decision · page 5Although it is true that the applicant suffers from "brain fog," or more properly a cognitive impairment that affects her ability to accurately recall dates and events, that does not necessarily mean that all the applicant's testimony is automatically to be rejected.

Employer witnesses testified no known COVID-19 positive Shasta County employees in August 2021

From the decision · page 5Petitioner next argues that the two employer witnesses who testified at trial establish through their sworn testimony that there were no Shasta County employees in August of 2021 that they were aware of that were COVID 19 positive. This testimony is unrebutted, and we may treat it as truthful and as showing that there was no one employed by Shasta County that these two county employees knew of with a COVID 19 infection during the relevant timeframe of August of 2021.

Applicant's extensive exposure to non-Shasta County employees and public during August 2021

From the decision · page 5However, the presumption of 3212.87 was not made law only to protect public employees from infection through other employees. On the contrary, the idea was to lower the burden of proof for essential employees that "keep the lights on, water running, food stocked, and treat our ill and injured." The applicant's job required her not just to work with other county employees, but with the public, as well as other public employees. In this case, that specifically included interaction with about 40 other officers from all over the state at the Sacramento seminar, with about 16 candidates for employment with the county, and with the public and other public service providers during the Dixie Fire, all in the month of August 2021. Because of this rather extensive exposure to non-Shasta County employees during the critical month of August 2021, the testimony of the two county witnesses does not establish that the applicant did not get her COVID infection from her job, only that perhaps a slice out of the pie of potential work related exposure vectors can be removed. This testimony therefore does not serve as sufficient substantial evidence to rebut the presumption.