California: COVID-19 Presumption and Burden of Proof

One of the first COVID-19 Board Panel Decisions we’ve seen on presumption of industrial causation is Jackson v. County of Los Angeles. Though it is remanded for development of the record, it illustrates what the Appeals Board expects the parties and the QME or AME to provide in order for a decision to be based on substantial medical evidence. Our headnote on COVID-19 burden of proof reads as follows:

CA - NOTEWORTHY PANEL DECISIONS

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Nichole Jackson, Applicant v. County of Los Angeles, PSI, Defendant

W.C.A.B. No. ADJ13319190—WCAB Panel: Chair Zalewski, Commissioners Sweeney, Razo

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed August 23, 2022

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 However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp.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 June 1, 2022 Findings of Fact is rescinded, and the matter is returned to the trial level for further proceedings and decision consistent with the opinion herein.

Injury AOE/COE—COVID-19—Burden of Proof—WCAB, granting reconsideration, rescinded decision in which WCJ found that applicant, while employed as probation officer on 3/11/2020, sustained industrial injury in form of COVID-19, based on presumption of industrial causation in Labor Code § 3212.86 and on opinion of internal medicine qualified medical evaluator (QME), and WCAB returned matter to trial level for further development of record on issue of industrial causation, when WCAB found that presumption only covers cases of COVID-19 for employees who worked in person from 3/19/2020 to 7/5/2020 and was not applicable to applicant’s 3/11/2020 date of injury, and that QME’s opinion was not substantial evidence on issue of industrial causation because QME was not provided with specific history given in trial testimony, including applicant’s working conditions, frequency and duration of her contacts with public and with her coworkers, and fact that none of applicant’s coworkers were diagnosed with COVID-19 during any relevant period. [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].]

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