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California: Burden of Proof in COVID-19 Injury AOE/COE Case

May 03, 2023 (3 min read)

Here’s a noteworthy panel decision in which the WCAB rescinded the WCJ’s decision in a COVID-19 injury AOE/COE case, where the COVID-19 presumption of injury did not apply. Our case headnote is below.


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Elsa Garcia, Joffre Garcia (Deceased), Applicant v. U.S. Bank, Old Republic, Defendants

W.C.A.B. No. ADJ14627934—WCAB Panel: Commissioners Capurro, Razo, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed April 21, 2023

Publication Status:  CAUTION:  This decision has not been designated as a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision, as these decisions are subject to appeal. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

Disposition: Defendant’s Petition for Reconsideration is granted, the January 27, 2023 Findings of Fact is rescinded, and the matter is returned to the trial level for further proceedings and a new decision consistent with the opinion herein.

Injury AOE/COE—COVID-19—Burden of Proof—WCAB, granting reconsideration, rescinded decision in which WCJ found that defendant failed to rebut presumption of industrial causation and that decedent suffered compensable injury AOE/COE in form of COVID-19, which resulted in his death one week after testing positive for virus, and WCAB returned matter to trial level for further proceedings, when WCAB reasoned that, contrary to WCJ’s determination, decedent’s injury was not covered by COVID-19 presumption of industrial causation because his employment as banker was not covered employment under Labor Code § 3212.87, and Labor Code § 3212.88 did not apply because decedent’s positive COVID-19 test did not occur during COVID-19 outbreak at his workplace, as defined in Labor Code § 3212.88(m)(4), that because presumption of industrial causation did not apply, WCJ was required to determine issue of causation without applying presumption, that in cases where employee’s injury is caused by communicable disease, such as decedent’s case, essential questions of when and where employee contracted disease may be unanswerable with certainty, and medical evidence is required to establish industrial causation by demonstrating that it is more likely employee acquired disease at work or that employment subjected employee to special risk of exposure in excess of that of general population, that here, determination of injury AOE/COE must be based on substantial medical evidence, and that because no medical-legal evaluation has yet been completed in this case, further development of record is necessary before WCJ can make determination regarding industrial causation based on substantial medical evidence. [See generally Hanna, Cal. Law of Emp. Inj. and Workers’ Comp. 2d §§ 4.05[2][a]-[c], 27.01[1][c]; Rassp & Herlick, California Workers’ Compensation Law, Ch. 10, § 10.01[4].]