What the panel treated as outcome-determinative, and which side it favoured.
The COVID-19 presumption under section 3212.86 was repealed effective January 1, 2024, raising legal questions about its applicability to this case.
Favours neutral
This legal issue prompted the Appeals Board to grant reconsideration for further study before final decision.
From the decision · page 1Defendant does not dispute that the May 10, 2020, date of injury falls within the section
3212.86 COVID-19 presumption. However, defendant contends that applicant is not entitled to the
section 3212.86 presumption because the WCJ's Findings and Order issued on February 3, 2025,
and section 3212.86 was repealed effective January 1, 2024. Defendant also contends that the
opinions of Sameer Gupta, M.D., Panel Qualified Medical Evaluator (QME) in internal medicine,
are not substantial medical evidence upon which the WCJ can rely. Defendant further contends
that the WCJ's request for supplemental reporting by the QME constituted judicial bias in favor
of the applicant.
Applicant tested positive for COVID-19 on May 10, 2020, within the statutory period for the presumption.
Favours Applicant prevailed
This fact establishes the initial eligibility for the COVID-19 presumption under Labor Code section 3212.86.
From the decision · page 1Defendant seeks reconsideration of the Findings and Order (F&O), issued by the workers'
compensation administrative law judge (WCJ) on February 3, 2025, wherein the WCJ found in
pertinent part that applicant sustained injury arising out of and in the course of employment
(AOE/COE), while employed on May 10, 2020, in the form of COVID-19 infection pursuant to
the Labor Code section1 3212.86 presumption and that defendant failed to meet their burden of
proof to rebut the presumption.
The QME's medical opinion linked the COVID-19 infection to workplace exposure based on co-worker data and symptom timelines.
Favours Applicant prevailed
This medical opinion provided substantial evidence supporting the compensability presumption, which the WCJ relied upon.
From the decision · page 4[The] QME issued a third report. (Joint Exhibit 103). In such report, the doctor
indicated, to the best of his ability, the timelines of the development of
applicant's symptoms as well as when co-workers tested positive for COVID....
The WCJ's request for supplemental QME reporting was challenged as judicial bias but was upheld as proper judicial discretion to develop the record.
Favours Defendant prevailed
This procedural fact affected the evaluation of the evidence and the fairness of the proceedings.
From the decision · page 4Defendant argued that it appeared the WCJ was an advocate for the applicant.
The WCJ is certain that defendant does not intend to impugn the WCJ's
character, however, defendant is reminded that a judge has discretion to rely on
evidence submitted or further develop the record. Thus, in no way can it be
construed that the WCJ acted as applicant's advocate when requesting the
supplemental report from the doctor in which the legislative standard was to be
addressed. Rather, this WCJ may only make determinations on substantial
medical evidence, which includes the reporting from medical providers using
the correct standard....