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California: Rebuttal of COVID-19 Presumption

October 07, 2022 (3 min read)

AB 1751, signed into law by the Governor, extended COVID-19 presumptions until January 1, 2024, and added additional first responders to the presumption. See amended Labor Code §§ 3212.86, 3212.87, and 3212.88. Here’s an interesting board panel decision where the WCAB panel found that the defendant did not rebut the COVID-19 presumption in Section 3212.86. Read the LexisNexis headnote below.


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Sofia Sevillano, Applicant v. State of California, IHSS, legally uninsured, administered by York Risk Services Group, a Sedgwick Company, Defendants

W.C.A.B. No. ADJ13511723—WCAB Panel: Commissioners Razo, Sweeney, Chair Zalewski

Workers’ Compensation Appeals Board (Board Panel Decision)

Opinion Filed September 28, 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 However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp.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:  Reconsideration is granted, and the August 5, 2021 Findings and Order is rescinded and substituted with a new Findings of Fact and Award.

Counsel:  For applicant—The Dominguez Firm

For defendants—Law Offices of Bradford & Barthel

Injury AOE/COE—COVID-19—Burden of Proof—Rebuttal of COVID-19 Presumption—WCAB, granting reconsideration, rescinded decision in which WCJ found that defendant successfully rebutted Labor Code § 3212.86 presumption that applicant suffered COVID-19-related illness arising out of and in course of her employment as home healthcare worker on 6/26/2020, and issued new decision finding that applicant qualified for COVID-19 presumption in Labor Code § 3212.86, as WCJ determined, but that defendant did not rebut presumption, when WCAB reasoned that to rebut presumption, defendant has burden to establish that employee’s COVID-19-related illness did not arise out of and in course of employment, that here defendant offered no substantial evidence such as treatment reports, medical-legal reports or witness testimony indicating that applicant was infected with COVID-19 on non-industrial basis, that although records from applicant’s COVID-19 hospitalization mentioned that applicant reported her roommates “are also COVID positive,” applicant denied stating this, and WCAB found defendant’s affirmative burden of rebutting presumption of industrial causation requires more than passing reference in chart notes to statement made without interpreter and otherwise unsubstantiated in record, and that applicant’s uniform complaints of shortness of breath, subsequent eight day hospitalization and diagnosis of acute hypoxic respiratory failure, COVID-19 and pneumonia, were sufficient to support finding that applicant sustained compensable COVID-19-related illness, including injury to her lungs in form of pneumonia, but WCAB deferred findings related to all other body parts. [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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