What the panel ordered
Petition for Reconsideration granted; Findings and Order of May 23, 2022 rescinded; matter returned to WCJ for further proceedings.
Defendant sought reconsideration of the Findings and Order issued by the WCJ on May 23, 2022, which found injury AOE/COE from COVID-19 resulting in death; the WCAB granted reconsideration, rescinded the F&O, and returned the matter to the WCJ for further proceedings.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 WCAB found no substantial evidence on injury AOE/COE causation in the record and granted reconsideration to develop the record further, rescinding the prior Findings and Order.
From the decision · page 1Defendant seeks reconsideration of the Findings and Order (F&O) issued by the workers' compensation administrative law judge (WCJ) on May 23, 2022, wherein the WCJ found in pertinent part that the applicant sustained injury arising out of and occurring in the course of employment (AOE/COE) in the form of COVID-19, resulting in injury to his internal organs and causing his death.1
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
No substantial evidence in the record addressing injury AOE/COE causation for COVID-19 infection and death.
Favours Defendant prevailed
Led the Board to grant reconsideration and remand for further development of the medical record on causation.
From the decision · page 4Although Dr. Hiserodt concluded that applicant's spouse's death was "likely due to COVID-19" (App. Exh. 1, p. 1), as noted above his report does not address the issue of injury AOE/COE. In turn, our review of the trial record indicates there is no medical evidence regarding the issue of injury AOE/COE. The Appeals Board has the discretionary authority to develop the record when the record does not contain substantial evidence pertaining to a threshold issue, or when it is necessary in order to fully adjudicate the issues. (Lab. Code § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].)
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.
Concluded death was likely due to COVID-19 based on autopsy showing acute viral pneumonia and lung pathology with diffuse alveolar damage and presence of COVID-19 virus.
The autopsy report did not address injury arising out of and in the course of employment (AOE/COE).
From the decision · page 2the applicant died as a result of acute viral pneumonia likely secondary to infection with COVID-19 virus. Lung pathology revealed diffuse alveolar damage (DAD) with many hyaline membranes and intense congestion. Abundant fibrin strands were also present in most alveoli. Post mortem molecular testing revealed the presence of COVID-19 virus, indicating this was a death likely due to COVID-19. (App. Exh. 1, Dr. Hiserodt, March 26, 2020, p. 1.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3600(a)
Workers' compensation liability exists for injury arising out of and in the course of employment without regard to negligence (Labor Code section 3600(a)).
The Board reviewed the requirement that the injury must be causally linked to employment and that the employment be a contributing cause.
From the decision · page 2Labor Code section 3600, subdivision (a) provides that workers' compensation liability "shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment..." The California Supreme Court has explained that it is the applicant's burden to establish that industrial causation is reasonably
Labor Code section 3212.86
Presumption of compensability for COVID-19 infections under Labor Code section 3212.86 does not apply because death occurred before March 19, 2020.
The Board found the presumption inapplicable due to the date of death prior to the presumption start date.
From the decision · page 3We agree with the WCJ that the Labor code section 3212.86 presumption is not applicable in this matter because applicant's spouse passed away on March 16, 2020 (prior to the March 19,
McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408
Applicant must prove industrial causation by reasonable probability, not scientific certainty.
The Board emphasized the burden of proof standard for causation in infectious disease cases.
From the decision · page 4In light of the fact that neither of the above mentioned presumptions is applicable, applicant must show, at a minimum, that it is reasonably probable that applicant's spouse's employment with defendant was a causative factor in his development of COVID-19, and that the COVID-19 was a causative factor as to his death. (McAllister v. Workmen's Comp. Appeals Bd. (1968) 69 Cal.2d 408 [33 Cal.Comp.Cases 660].) "The applicant in a workers' compensation proceeding has the burden of proving industrial causation by a `reasonable probability.' (citation) That burden manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1700 § 1701 [58 Cal.Comp.Cases 313].)
What proof carried it
The evidence the panel weighed, by kind.
Autopsy report by Dr. Hiserodt showing COVID-19 infection and lung pathology
From the decision · page 2the applicant died as a result of acute viral pneumonia likely secondary to infection with COVID-19 virus. Lung pathology revealed diffuse alveolar damage (DAD) with many hyaline membranes and intense congestion. Abundant fibrin strands were also present in most alveoli. Post mortem molecular testing revealed the presence of COVID-19 virus, indicating this was a death likely due to COVID-19. (App. Exh. 1, Dr. Hiserodt, March 26, 2020, p. 1.)
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.