What the panel ordered
Petition for Reconsideration granted; prior Findings and Order rescinded; case returned to trial level for further proceedings.
Applicant sought reconsideration of the Findings and Order issued on December 19, 2024, which denied her claim for injury arising out of and in the course of employment due to COVID-19 exposure. The WCAB granted reconsideration and rescinded the prior Findings and Order, returning the matter to the trial level for further proceedings.
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's reliance on Dr. Baum's opinion was found to be unsupported by adequate clinical history and reasoning, thus not substantial medical evidence. The Appeals Board found the medical record deficient and ordered further development to determine if the applicant's COVID-19 infection was more likely acquired at work or from other sources.
From the decision · page 10In this case, the WCJ relied upon Dr. Baum's reporting that applicant could not have contracted COVID-19 on November 18, 2020, because the maximum latency period between exposure to COVID-19 and development of symptoms is 14 days, and applicant first tested positive for the virus on December 23, 2020.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant broke quarantine on 12/15/2020 to undergo abdominal ultrasound, which was not considered by treating or QME physicians.
Favours Applicant prevailed
This break in quarantine supports the possibility that applicant's COVID-19 exposure occurred outside the workplace, undermining the prior causation findings.
From the decision · page 6Baum emphasized that if he were to conclude that applicant's Covid infection was related to her exposure on 11/18/2020, he "would be hard pressed to explain the time frame of her serology and the time frame of her testing and the time frame of her hospitalization." (Exhibit I, p. 72: 16-21) Dr. Baum opined that, while he cannot know where applicant acquired the Covid infection, he is reasonably certain she did not acquire it from her client. (Exhibit I, p. 73: 16- 19)... While applicant asserts she quarantined as soon as she learned of her care recipient's Covid positive diagnosis, applicant broke quarantine on 12/15/2020, when she underwent an abdominal ultrasound at O'Connor Hospital. This significant break in quarantine was not considered nor discussed by either Dr. Cervenka nor Dr. Bonilla. Further, the 12/23/2020 Covid positive test appears to support applicant's potential exposure on 12/15/2020, as Dr. Baum opined the period of exposure would have been sometime between December 16th to December 22nd. (Exhibit G, p. 25: 9-10) Significantly, applicant testified her symptoms became worse on 12/20/2020, five days after her ultrasound procedure of 12/15/2020. (7/24/2024 MOH/SOE, p. 8: 41-42)
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.
Opined that applicant's COVID-19/Long-COVID was caused by exposure to care recipient on 11/18/2020, but her opinion was based on inaccurate history and was internally inconsistent without comprehensive medical reasoning.
Opinion based on inaccurate history and lacking comprehensive medical report; not framed in reasonable medical probability.
From the decision · page 3Covid/Long-Covid was as a result to her 11/18/2020 exposure to her care recipient.... The undersigned found the reports and opinions of QME Dr. Baum were more persuasive and are substantial medical evidence supporting non-industrial causation for applicant's Covid infection.... On 1/03/2025, applicant dismissed her attorney and is now unrepresented and was so at the time her petition was filed. (Judicial Notice, EAMS Doc. ID No. 78747301) Applicant has attached several documents to her Petition in violation of 8 CCR § 10945(c)(2), which states that a document that is not part of the adjudication file shall not be attached to or filed with a petition for reconsideration or answer unless a ground for the petition for reconsideration is newly discovered evidence. As applicant makes no mention of newly discovered evidence as grounds for her petition, the undersigned has not read nor will consider said attachments.... On 5/07/2021, Dr. Cervenka issued a letter indicating that on 11/18/2020, applicant had unknowingly been exposed, in closed quarters for a prolonged period, to an individual with Covid while in the course of her work as a caregiver. It was her opinion that this was the cause of applicant's subsequent Covid diagnosis. (Exhibit 8)
Opined that it was not medically probable that applicant contracted COVID-19 from care recipient on 11/18/2020 due to incubation period and timing of positive test and symptoms; his opinion was found to lack adequate clinical history and reasoning and thus was not substantial medical evidence.
Opinion lacked adequate clinical history and reasoning; not substantial medical evidence.
From the decision · page 10In this case, the WCJ relied upon Dr. Baum's reporting that applicant could not have contracted COVID-19 on November 18, 2020, because the maximum latency period between exposure to COVID-19 and development of symptoms is 14 days, and applicant first tested positive for the virus on December 23, 2020.
Agreed with Dr. Cervenka that applicant's symptoms were consistent with Long-COVID syndrome and timeline of exposure, but opinion was based on inaccurate history and lacked comprehensive medical reasoning.
Opinion based on inaccurate history and lacking comprehensive medical report; not framed in reasonable medical probability.
From the decision · page 3Covid/Long-Covid was as a result to her 11/18/2020 exposure to her care recipient.... The undersigned found the reports and opinions of QME Dr. Baum were more persuasive and are substantial medical evidence supporting non-industrial causation for applicant's Covid infection.... On 1/03/2025, applicant dismissed her attorney and is now unrepresented and was so at the time her petition was filed. (Judicial Notice, EAMS Doc. ID No. 78747301) Applicant has attached several documents to her Petition in violation of 8 CCR § 10945(c)(2), which states that a document that is not part of the adjudication file shall not be attached to or filed with a petition for reconsideration or answer unless a ground for the petition for reconsideration is newly discovered evidence. As applicant makes no mention of newly discovered evidence as grounds for her petition, the undersigned has not read nor will consider said attachments.... On 5/07/2021, Dr. Cervenka issued a letter indicating that on 11/18/2020, applicant had unknowingly been exposed, in closed quarters for a prolonged period, to an individual with Covid while in the course of her work as a caregiver. It was her opinion that this was the cause of applicant's subsequent Covid diagnosis. (Exhibit 8)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922
Substantial medical evidence must be based on reasonable medical probability, accurate history, examination, and reasoning supporting conclusions.
The WCJ's reliance on Dr. Baum's opinion was found to lack adequate clinical history and reasoning, thus not substantial medical evidence.
From the decision · page 9reasoning to support the expert conclusions reached. (E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).) "A medical report predicated upon an incorrect legal theory and devoid of relevant factual basis, as well as a medical opinion extended beyond the range of the physician's expertise, cannot rise to a higher level than its own inadequate premises." (Zemke v. Workmen's Comp. Appeals Bd. (1968) 68 Cal.2d 794 [69 Cal.Rptr. 88, 441 P.2d 928, 33 Cal.Comp.Cases 358, 363].) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture, or guess." (Hegglin v. Workmen's Comp. Appeals Bd., (1971) 4 Cal.3d 162 [36 Cal.Comp.Cases at 93, 97] Whether a physician's opinion constitutes substantial evidence "must be determined by the material facts upon which his opinion was based and by the reasons given for his opinion." (Ibid.)
Bethlehem Steel Co. v. Industrial Acc. Com. (1943) 21 Cal.2d 742
In communicable disease cases, industrial causation can be established by showing it is more likely the disease was acquired at work or that employment exposed the employee to a special risk beyond the general population.
The Appeals Board ordered further development of the medical record to determine if applicant's COVID-19 infection was more likely acquired at work or from other sources.
From the decision · page 9Substantial evidence of industrial causation must be based on reasonable medical probability--it is not required to prove causation to a "scientific certainty." (See McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal. 2d 408, [71 Cal.Rptr. 697, 445 P.2d 313, 33 Cal.Comp.Cases 660]; Rosas v. Workers' Compensation Appeals Board (1993) 16 Cal.App.4th 1692 [20 Cal.Rptr.2d 778, 58 Cal.Comp.Cases 313, 319].) In cases where an applicant's injury is caused by a communicable disease, the essential questions of when and where applicant contracted the disease may be unanswerable with any certainty. In those circumstances, the employee can establish industrial causation by demonstrating that it is more likely applicant acquired the disease at work or that the employment subjected the employee to a special risk of exposure in excess of the general population. (Bethlehem Steel Co. v. Industrial Acc. Com. (1943) 21 Cal.2d 742 [135 P.2d 153, 8 Cal.Comp.Cases 61].)
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony that she broke quarantine on 12/15/2020 to undergo abdominal ultrasound, which was not considered by treating or QME physicians.
From the decision · page 6Baum emphasized that if he were to conclude that applicant's Covid infection was related to her exposure on 11/18/2020, he "would be hard pressed to explain the time frame of her serology and the time frame of her testing and the time frame of her hospitalization." (Exhibit I, p. 72: 16-21) Dr. Baum opined that, while he cannot know where applicant acquired the Covid infection, he is reasonably certain she did not acquire it from her client. (Exhibit I, p. 73: 16- 19)... While applicant asserts she quarantined as soon as she learned of her care recipient's Covid positive diagnosis, applicant broke quarantine on 12/15/2020, when she underwent an abdominal ultrasound at O'Connor Hospital. This significant break in quarantine was not considered nor discussed by either Dr. Cervenka nor Dr. Bonilla. Further, the 12/23/2020 Covid positive test appears to support applicant's potential exposure on 12/15/2020, as Dr. Baum opined the period of exposure would have been sometime between December 16th to December 22nd. (Exhibit G, p. 25: 9-10) Significantly, applicant testified her symptoms became worse on 12/20/2020, five days after her ultrasound procedure of 12/15/2020. (7/24/2024 MOH/SOE, p. 8: 41-42)
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