ADJ16043082 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed and denied by WCAB panel on review of WCJ decision dated 9/25/2023

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 · COVID-19 related pneumonia · neuro-cognitive deficits

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

The facts that decided it

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

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.

Testimony and credibilityfavours Defendant prevailed

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.

work activityfavours Applicant prevailed

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.

ADJ16043082 · December 18, 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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