What the panel ordered
Petition for Reconsideration is granted; final decision after reconsideration is deferred pending further review of merits and entire record.
Defendant sought reconsideration of the WCJ's Findings and Order issued on February 3, 2025, which found applicant sustained injury arising out of employment under Labor Code section 3212.86 presumption; the WCJ's Report recommended denial of reconsideration; the Appeals Board granted reconsideration and deferred final decision pending further review.
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.
The WCJ found the applicant sustained injury arising out of employment under the COVID-19 presumption; defendant challenged the presumption's applicability due to its repeal; the Appeals Board granted reconsideration to further study the legal and factual issues before final decision.
From the decision · page 1Defendant seeks reconsideration of the Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on February 3, 2025, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and in the course of employment (AOE/COE), while employed on May 10, 2020, in the form of COVID-19 infection pursuant to the Labor Code section1 3212.86 presumption and that defendant failed to meet their burden of proof to rebut the presumption.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
The COVID-19 presumption under section 3212.86 was repealed effective January 1, 2024, raising legal questions about its applicability to this case.
Favours neutral
This legal issue prompted the Appeals Board to grant reconsideration for further study before final decision.
From the decision · page 1Defendant does not dispute that the May 10, 2020, date of injury falls within the section 3212.86 COVID-19 presumption. However, defendant contends that applicant is not entitled to the section 3212.86 presumption because the WCJ's Findings and Order issued on February 3, 2025, and section 3212.86 was repealed effective January 1, 2024. Defendant also contends that the opinions of Sameer Gupta, M.D., Panel Qualified Medical Evaluator (QME) in internal medicine, are not substantial medical evidence upon which the WCJ can rely. Defendant further contends that the WCJ's request for supplemental reporting by the QME constituted judicial bias in favor of the applicant.
Applicant tested positive for COVID-19 on May 10, 2020, within the statutory period for the presumption.
Favours Applicant prevailed
This fact establishes the initial eligibility for the COVID-19 presumption under Labor Code section 3212.86.
From the decision · page 1Defendant seeks reconsideration of the Findings and Order (F&O), issued by the workers' compensation administrative law judge (WCJ) on February 3, 2025, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and in the course of employment (AOE/COE), while employed on May 10, 2020, in the form of COVID-19 infection pursuant to the Labor Code section1 3212.86 presumption and that defendant failed to meet their burden of proof to rebut the presumption.
The QME's medical opinion linked the COVID-19 infection to workplace exposure based on co-worker data and symptom timelines.
Favours Applicant prevailed
This medical opinion provided substantial evidence supporting the compensability presumption, which the WCJ relied upon.
From the decision · page 4[The] QME issued a third report. (Joint Exhibit 103). In such report, the doctor indicated, to the best of his ability, the timelines of the development of applicant's symptoms as well as when co-workers tested positive for COVID....
The WCJ's request for supplemental QME reporting was challenged as judicial bias but was upheld as proper judicial discretion to develop the record.
Favours Defendant prevailed
This procedural fact affected the evaluation of the evidence and the fairness of the proceedings.
From the decision · page 4Defendant argued that it appeared the WCJ was an advocate for the applicant. The WCJ is certain that defendant does not intend to impugn the WCJ's character, however, defendant is reminded that a judge has discretion to rely on evidence submitted or further develop the record. Thus, in no way can it be construed that the WCJ acted as applicant's advocate when requesting the supplemental report from the doctor in which the legislative standard was to be addressed. Rather, this WCJ may only make determinations on substantial medical evidence, which includes the reporting from medical providers using the correct standard....
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
To a reasonable degree of medical probability, applicant contracted COVID-19 infection from workplace exposure based on co-worker data and timelines of symptom development.
The QME's third supplemental report provided a medical probability opinion linking the COVID-19 infection to workplace exposure, which the WCJ relied upon as substantial medical evidence.
From the decision · page 4[The] QME issued a third report. (Joint Exhibit 103). In such report, the doctor indicated, to the best of his ability, the timelines of the development of applicant's symptoms as well as when co-workers tested positive for COVID....
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3212.86
Labor Code section 3212.86 presumption of compensability for COVID-19 infection contracted at work between March 19, 2020 and July 5, 2020.
The presumption applies if the employee tested positive within 14 days of performing labor at the employer's place of employment during the specified period.
From the decision · page 5Section 3212.86 sets forth a presumption of compensability if a worker contracted COVID- 19 at the employee's place of employment on or after March 19, 2020, and on or before July 5, 2020, and other conditions are met. (Lab. Code, § 3212.86(a)-(b)). It is applicant's burden to establish the presumption. This may be shown by stipulation of the parties, testimony, or documentary evidence. Specifically the applicant must establish:
Labor Code sections 3202.5, 5705; McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal. 2d 408; Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692
Defendant bears burden to rebut the presumption by preponderance of evidence; if rebutted, applicant must prove industrial causation by reasonable medical probability.
The presumption shifts burden to defendant; if rebutted, applicant must prove causation without presumption.
From the decision · page 6This presumption is disputable and may be controverted by other evidence. (Lab. Code, § 3212.86(e).) Unless controverted, however, the Appeals Board is bound to find in accordance with the presumption. (Id.) Thus, if the presumption applies, the burden shifts to the defendant to establish, by a preponderance of the evidence, that applicant's COVID-19 related injury is not entitled to a presumption of compensability pursuant to section 3212.86. (Lab. Code, § 3202.5, 5705.)
McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389; Labor Code sections 5701, 5906
Appeals Board has discretionary authority to develop the record when medical evidence is not substantial or to provide due process.
The WCAB may develop the record to ensure substantial evidence and due process.
From the decision · page 6Additionally, the Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; McDuffie v. Los Angeles County Metropolitan Transit Authority (2001) 67 Cal.Comp.Cases 138, 141 (Appeals Bd. en banc); see also Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; Lab. Code, § 5701, 5906.)
What proof carried it
The evidence the panel weighed, by kind.
Testimony from multiple witnesses, medical records, and QME reports supported the finding of injury arising out of employment.
From the decision · page 3Applicant alleges that at the time of injury he was exposed to the Coronavirus at work causing injury to his respiratory system, lungs, left eye and left leg. The evidentiary record consists of multiple medical records, records from Cardenas Markets pertaining to applicant as well as other employees, the QME evaluation reports from Dr. Gupta, as well as testimony from multiple witnesses....
The WCJ's request for supplemental reporting by the QME was challenged as judicial bias but was found to be proper judicial discretion to develop the record.
From the decision · page 4Defendant argued that it appeared the WCJ was an advocate for the applicant. The WCJ is certain that defendant does not intend to impugn the WCJ's character, however, defendant is reminded that a judge has discretion to rely on evidence submitted or further develop the record. Thus, in no way can it be construed that the WCJ acted as applicant's advocate when requesting the supplemental report from the doctor in which the legislative standard was to be addressed. Rather, this WCJ may only make determinations on substantial medical evidence, which includes the reporting from medical providers using the correct standard....
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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