ADJ14125842 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed and denied by the Workers' Compensation Appeals Board panel.

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.

AOE/COEApplicant prevailedCOVID-19 infection

The applicant met her burden of proof for industrial causation of COVID-19 based on credible testimony and medical opinions showing exposure at work and employer's inadequate COVID protocols.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, and for the reasons stated below, we will deny reconsideration.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant worked in an open workstation near an infected coworker who showed COVID symptoms and was allowed to work without mask or testing.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 3600(a)

Workers' compensation liability exists for any injury arising out of and in the course of employment without regard to negligence.

Applicant met burden to show industrial causation of COVID-19 infection.

From the decision · page 1Labor Code1 section 3600(a) provides that workers' compensation liability "shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment..." (Lab. Code, § 3600(a).) The California Supreme Court has explained that it is the applicant's burden to establish that industrial causation is reasonably probable. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291, 297 [80 Cal.Comp.Cases 489].) The concept of "in the course of employment" "ordinarily refers to the time, place, and circumstances under which the injury occurs." For an injury to "arise out of" the 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. (Citations.)" The section 3600 proximate cause requirement "`has been interpreted as merely elaborating on the general requirement that the injury arise out of the employment.' [Citation.] The danger from which the employee's injury results must be one to which he was

La Tourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644

The narrow rule of compensability for infectious diseases requires showing increased risk due to employment.

Applicant's case distinguished from La Tourette by showing reasonable medical probability of infection at work.

From the decision · page 8LaTourette does not bar applicant's injury either. In LaTourette, the decedent was on a business trip as a commercial traveler and had a heart condition that he sought treatment for. LaTourette was treated at a hospital in Reno and contracted a bacterial infection and died. The widow did not recover as no greater risk was demonstrated on the facts, i.e. the widow could not show that the decedent was exposed to a special risk of infection or other medical injury because of his employment. The widow merely asserted that it was possible and an award cannot be based upon surmise or conjecture.

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Credible testimony of applicant about employer's lack of COVID protocols and exposure to infected coworker.

From the decision · page 8In applicant's case, there was reasonable medical probability that COVID was contracted at work through the conduit of Shirleen. In this case, the medical evidence from the PTP and PQME supports this from the contact tracing and the exposure as well as the employer's "carefree" attitude. Defense witness was not credible and contradicted herself. Applicant was credible in her recitation of the laissez-faire attitude that her employer had with COVID protocols at the height of the pandemic. Applicant was a new employee and it is understandable that she would follow the lead of defense witness and not feel she had to wear a mask as she wanted to fit in. Shirleen - a visibly sick employee showed up three days in a row and was allowed to work at an open workstation near the front door after returning from vacation and continued working until she ultimately

Testimony and credibilityfavours Applicant prevailed

Contradictory and non-credible testimony of defense witness regarding COVID protocols and coworker's illness.

From the decision · page 8In applicant's case, there was reasonable medical probability that COVID was contracted at work through the conduit of Shirleen. In this case, the medical evidence from the PTP and PQME supports this from the contact tracing and the exposure as well as the employer's "carefree" attitude. Defense witness was not credible and contradicted herself. Applicant was credible in her recitation of the laissez-faire attitude that her employer had with COVID protocols at the height of the pandemic. Applicant was a new employee and it is understandable that she would follow the lead of defense witness and not feel she had to wear a mask as she wanted to fit in. Shirleen - a visibly sick employee showed up three days in a row and was allowed to work at an open workstation near the front door after returning from vacation and continued working until she ultimately

ADJ14125842 · June 12, 2023

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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What the panel did with the medical opinions

The rules the panel named

What proof carried it

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