Lab. Code, §§ 3600(a), 5705; McAllister v. WCAB (1968) 69 Cal.2d 408; South Coast Framing v. WCAB (Clark) (2015) 61 Cal.4th 291
Applicant bears the initial burden of proving injury AOE/COE by a preponderance of the evidence; burden shifts to employer upon prima facie showing of exposure to the danger involved.
Panel applied these standards to determine whether applicant established industrial causation for decedent's mesothelioma.
From the decision · page 9Applicant bears the initial burden of proving that decedent's injury arose out of and in the
course of his employment as a route driver for defendant. (South Coast Framing v. Workers' Comp.
Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297 298, 302; Lab. Code, § 5705; 3600(a).) The
concept of "in the course of the employment" generally "...refers to the time, place, and
circumstances under which the injury occurs." (Maher, supra, 33 Cal.3d at 733.) "Arising out of"
employment generally refers to the causal connection between the employment and the injury.
(Id.) In other words, the employee must be exposed to the "danger from which the injury results"
as a result of his or "particular employment." (Maher, supra, 33 Cal.3d at 734 n.3 citing Industrial
Indem. Co. v. Ind. Acc. Com. (1950) 95 Cal.App.2d 804, 809.) The burden of proof shifts to the
employer once an applicant makes a "prima facie showing...of exposure to the danger involved."
(McAllister v. Workmen's Comp. Appeals Board (1968) 69 Cal.2d 408, 416 [33 Cal.Comp.Cases
660] (McAllister).)
McAllister v. WCAB (1968) 69 Cal.2d 408; South Coast Framing v. WCAB (Clark) (2015) 61 Cal.4th 291; Latourette v. WCAB (1998) 17 Cal.4th 644
Proof of industrial causation must be reasonably probable, not certain or convincing; employment need only be a contributing cause of injury.
Panel cited these standards in evaluating whether the evidence established a causal connection between employment and injury.
From the decision · page 11It is true that the Supreme Court of California has long held that an employee need only
show that the "proof of industrial causation is reasonably probable, although not certain or
`convincing.'" (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408, 413 [33
Cal.Comp.Cases 660]; see also Clark, supra, at p. 298 ["it is sufficient if the connection between
work and the injury be a contributing cause"].) In order for an injury to arise out of employment,
the employment need only be "`"one of the contributing causes"`" of the injury. (Clark, supra, 61
Cal.4th at pp. 297-29 quoting Latourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644
[63 Cal.Comp.Cases 253] (Latourette) quoting Maher, supra, 33 Cal.3d. at p. 734, fn. 3.)