ADJ14048813 · July 10, 2023

The presumption of industrial causation under Labor Code section 3212.87 applies to CHP officers. The WCJ found applicant's symptom history credible and consistent with industrial exposure. Defendant failed to provide substantial evidence to rebut the presumption, including no evidence of non-industrial exposure during vacation. The QME opined industrial causation based on applicant's symptoms starting October 10, 2020, before vacation. The WCAB gave great weight to the WCJ's credibility findings and denied reconsideration.

From the decision · page 1Defendant seeks reconsideration of the April 19, 2023 Findings of Fact, Orders and Award (F&A), wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a California Highway Patrol Officer on October 19, 2020, sustained industrial injury in the form of COVID-19-related illness. The WCJ found that the presumption of industrial causation found in Labor Code section 3212.87 was applicable, and that defendant had not overcome the presumption.

Applicant reported symptoms starting October 9-10, 2020, consistent with industrial exposure before vacation.

Favours Applicant prevailed

Supported the QME's opinion of industrial causation and the WCJ's credibility finding, establishing the presumption of industrial injury.

Defendant failed to provide substantial evidence of non-industrial exposure during applicant's vacation or rebut the presumption of industrial injury.

Favours Applicant prevailed

Left the presumption intact, leading to denial of defendant's petition for reconsideration.

From the decision · page 7Defendant contends that applicant's participation in the building of a shed and subsequent travel to Las Vegas "placed him at risk of nonindustrial exposure to COVID-19." (Id. at 10:5.) However, defendant offers no medical or other evidence confirming exposure, and interposes no witnesses to substantiate the alleged risks of infection. Defendant offers only its own surmise as to activities it considers to represent a heightened risk of COVID-19 infection. However, mere speculation as to alternate infection vectors is insufficient to satisfy defendant's affirmative burden to overcome the presumption of injury. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d

Opined that applicant contracted COVID-19 industrially, symptomatic on last day worked October 10, 2020, assisting civilians as a first responder, and affirmed industrial causation despite hypothetical non-industrial exposure if symptoms started October 20, 2020.

Based on applicant's symptom history starting October 10, 2020, and occupational exposure as a CHP officer, the QME concluded industrial causation to a reasonable medical probability.

From the decision · page 2On October 14, 2020, applicant traveled to Las Vegas, returning on October 19, 2020. On October 23, 2020, applicant was diagnosed with COVID-19, and on October 25, 2020, applicant was hospitalized for four days for treatment of COVID-19-related symptoms. (Ex. 1, Report of Omar Tirmizi, M.D., April 10, 2021, at p. 2.) On December 30, 2020, applicant filed an Application for Adjudication, alleging injury to the lungs, pulmonary system and neurologic system, and in the form of COVD-19-related illness. The parties selected Omar Tirmizi, M.D., as the Qualified Medical Evaluator (QME). On April 10, 2021, Dr. Tirmizi issued his first report. Applicant reported that he felt unwell and had flu-like symptoms as of October 10, 2020, and "felt unwell enough to go and purchase some Allegra from Walgreens." (Ex. 1, Report of Omar Tirmizi, M.D., April 10, 2021, at p. 2.) Following his last day worked on October 10, 2020, applicant travelled to Las Vegas, returning on October 19, 2020. Applicant reported that "on the day he returned back, he felt especially unwell," and applicant stayed in bed for several days. Applicant was first formally diagnosed with COVID- 19 on October 23, 2020, and was later admitted to the Sutter Amador Hospital for four days beginning October 25, 2020. (Ibid.) Dr. Tirmizi reviewed applicant's clinical findings and opined:

Labor Code section 3212.87

Presumption of industrial causation under Labor Code section 3212.87 applies to specified public safety officers including CHP members.

The presumption attaches if the employee performed labor at the employer's direction on or after July 6, 2020, and was diagnosed with COVID-19 within 14 days after that day.

From the decision · page 6Section 3212.87 contains presumptions applicable to COVID-19 illness, and applies to specific classes of employees, including "[a]ny member of the Department of the California Highway Patrol." (Lab. Code, § 3212.87(a)(5); Pen. Code, § 830.2(a).) The statute provides in pertinent part:

Labor Code section 3212.87(e)

Burden of proof to rebut presumption of industrial injury falls on the employer under Labor Code section 3212.87(e).

Once the presumption attaches, the employer must prove non-industrial causation by other evidence; mere speculation is insufficient.

From the decision · page 7The parties do not dispute that the presumption of industrial causation described in section 3212.87 attaches herein. (Minutes, at 2:13.) However, pursuant to subdivision (e), the presumption may be controverted by "other evidence." (Lab. Code, § 3212.87(e).) The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact. (Evid. Code, § 606; City of Long Beach v. Workers' Compensation Appeals Bd. (Garcia), supra, 126 Cal.App.4th 298, 314.) Accordingly, once the "facts giving rise to the presumption of industrial injury have been proven at the outset, the burden of proof negating the presumption falls upon the employer." (Gillette v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 312 [36 Cal.Comp.Cases 570].) It thus falls to defendant to establish that applicant's COVID-19 related illness did not arise out of and in the course of his employment. If defendant is unable to successfully controvert the presumption of industrial causation, we are "bound to find in accordance with the presumption." (Lab. Code, § 3212.87(e).)

Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312

Credibility determinations by WCJ are entitled to great weight due to opportunity to observe witnesses' demeanor.

Only evidence of considerable substantiality warrants rejecting WCJ's credibility findings.

From the decision · page 9Moreover, in workers' compensation proceedings, a WCJ's credibility determinations are "entitled to great weight because of the [WCJ's] `opportunity to observe the demeanor of the witnesses and weigh their statements in connection with their manner on the stand...." (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Only evidence of considerable substantiality would warrant rejecting the WCJ's credibility determination. (Id. at pp. 318-319.)

Applicant's consistent and credible symptom history starting October 9-10, 2020, supported by contemporaneous claim notes and QME report.

Defendant's lack of medical or witness evidence to substantiate non-industrial exposure risk during vacation activities.

From the decision · page 7Defendant contends that applicant's participation in the building of a shed and subsequent travel to Las Vegas "placed him at risk of nonindustrial exposure to COVID-19." (Id. at 10:5.) However, defendant offers no medical or other evidence confirming exposure, and interposes no witnesses to substantiate the alleged risks of infection. Defendant offers only its own surmise as to activities it considers to represent a heightened risk of COVID-19 infection. However, mere speculation as to alternate infection vectors is insufficient to satisfy defendant's affirmative burden to overcome the presumption of injury. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d