ADJ14125842 · June 12, 2023

The applicant met her burden of proof for industrial causation of COVID-19 based on credible testimony and medical opinions showing exposure at work and employer's inadequate COVID protocols.

From the decision · page 1We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in the WCJ's report, which we adopt and incorporate, and for the reasons stated below, we will deny reconsideration.

Applicant worked in an open workstation near an infected coworker who showed COVID symptoms and was allowed to work without mask or testing.

Favours Applicant prevailed

This exposure created a higher risk of contracting COVID-19 at work, supporting compensability.

From the decision · page 8In applicant's case, there was reasonable medical probability that COVID was contracted at work through the conduit of Shirleen. In this case, the medical evidence from the PTP and PQME supports this from the contact tracing and the exposure as well as the employer's "carefree" attitude. Defense witness was not credible and contradicted herself. Applicant was credible in her recitation of the laissez-faire attitude that her employer had with COVID protocols at the height of the pandemic. Applicant was a new employee and it is understandable that she would follow the lead of defense witness and not feel she had to wear a mask as she wanted to fit in. Shirleen - a visibly sick employee showed up three days in a row and was allowed to work at an open workstation near the front door after returning from vacation and continued working until she ultimately

Employer had no effective COVID protocols in place at the time, including no testing, no mask enforcement, and delayed sanitation.

Favours Applicant prevailed

Employer's 'carefree' attitude increased applicant's risk of infection at work.

From the decision · page 8In applicant's case, there was reasonable medical probability that COVID was contracted at work through the conduit of Shirleen. In this case, the medical evidence from the PTP and PQME supports this from the contact tracing and the exposure as well as the employer's "carefree" attitude. Defense witness was not credible and contradicted herself. Applicant was credible in her recitation of the laissez-faire attitude that her employer had with COVID protocols at the height of the pandemic. Applicant was a new employee and it is understandable that she would follow the lead of defense witness and not feel she had to wear a mask as she wanted to fit in. Shirleen - a visibly sick employee showed up three days in a row and was allowed to work at an open workstation near the front door after returning from vacation and continued working until she ultimately

Defense witness testimony was contradictory and not credible, undermining defense's position on COVID protocols and exposure.

Favours Applicant prevailed

Credibility findings favored applicant's version of events, supporting compensability.

From the decision · page 8In applicant's case, there was reasonable medical probability that COVID was contracted at work through the conduit of Shirleen. In this case, the medical evidence from the PTP and PQME supports this from the contact tracing and the exposure as well as the employer's "carefree" attitude. Defense witness was not credible and contradicted herself. Applicant was credible in her recitation of the laissez-faire attitude that her employer had with COVID protocols at the height of the pandemic. Applicant was a new employee and it is understandable that she would follow the lead of defense witness and not feel she had to wear a mask as she wanted to fit in. Shirleen - a visibly sick employee showed up three days in a row and was allowed to work at an open workstation near the front door after returning from vacation and continued working until she ultimately

With reasonable medical probability, the applicant contracted COVID-19 as a result of her employment due to increased risk of exposure from an infected coworker and employer's inadequate protective measures.

From the decision · page 7The PQME, Dr. Yima Yavari (Court Exhibit X) stated that with reasonable medical probability the applicant contracted COVID as a result of her employment due to the increased risk of exposure as a result of her infected coworker and the "carefree approach of the employer in protecting its employees" (Id. at p. 35).

Found industrial causation of COVID-19 based on contact tracing linking the applicant's infection to exposure from coworker Shirleen and workplace conditions.

From the decision · page 7Both medical reports in this case found industrial injury. Dr. Zlotolow (Applicant's Exhibit 10) found industrial causation of COVID 19 based on contact tracing that the applicant gave the disease to her family and industrial exposure from Shirleen, her co-worker (Id. at p. 5). The history states the applicant wore a mask the first day of her new job and not afterwards as no one else wore them. Everyone had to pass by applicant's desk to go to the break room or bathroom (Id. at p. 3). The applicant did not go out without a mask and avoided large groups (Id. at p. 3).

Labor Code section 3600(a)

Workers' compensation liability exists for any injury arising out of and in the course of employment without regard to negligence.

Applicant met burden to show industrial causation of COVID-19 infection.

From the decision · page 1Labor Code1 section 3600(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..." (Lab. Code, § 3600(a).) The California Supreme Court has explained that it is the applicant's burden to establish that industrial causation is reasonably probable. (South Coast Framing, Inc. v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291, 297 [80 Cal.Comp.Cases 489].) The concept of "in the course of employment" "ordinarily refers to the time, place, and circumstances under which the injury occurs." For an injury to "arise out of" the employment, "... it must `occur by reason of a condition or incident of [the] employment.'..." [Citation.] That is, the employment and the injury must be linked in some causal fashion. (Citations.)" The section 3600 proximate cause requirement "`has been interpreted as merely elaborating on the general requirement that the injury arise out of the employment.' [Citation.] The danger from which the employee's injury results must be one to which he was

La Tourette v. Workers' Comp. Appeals Bd. (1998) 17 Cal.4th 644

The narrow rule of compensability for infectious diseases requires showing increased risk due to employment.

Applicant's case distinguished from La Tourette by showing reasonable medical probability of infection at work.

From the decision · page 8LaTourette does not bar applicant's injury either. In LaTourette, the decedent was on a business trip as a commercial traveler and had a heart condition that he sought treatment for. LaTourette was treated at a hospital in Reno and contracted a bacterial infection and died. The widow did not recover as no greater risk was demonstrated on the facts, i.e. the widow could not show that the decedent was exposed to a special risk of infection or other medical injury because of his employment. The widow merely asserted that it was possible and an award cannot be based upon surmise or conjecture.

Credible testimony of applicant about employer's lack of COVID protocols and exposure to infected coworker.

From the decision · page 8In applicant's case, there was reasonable medical probability that COVID was contracted at work through the conduit of Shirleen. In this case, the medical evidence from the PTP and PQME supports this from the contact tracing and the exposure as well as the employer's "carefree" attitude. Defense witness was not credible and contradicted herself. Applicant was credible in her recitation of the laissez-faire attitude that her employer had with COVID protocols at the height of the pandemic. Applicant was a new employee and it is understandable that she would follow the lead of defense witness and not feel she had to wear a mask as she wanted to fit in. Shirleen - a visibly sick employee showed up three days in a row and was allowed to work at an open workstation near the front door after returning from vacation and continued working until she ultimately

Contradictory and non-credible testimony of defense witness regarding COVID protocols and coworker's illness.

From the decision · page 8In applicant's case, there was reasonable medical probability that COVID was contracted at work through the conduit of Shirleen. In this case, the medical evidence from the PTP and PQME supports this from the contact tracing and the exposure as well as the employer's "carefree" attitude. Defense witness was not credible and contradicted herself. Applicant was credible in her recitation of the laissez-faire attitude that her employer had with COVID protocols at the height of the pandemic. Applicant was a new employee and it is understandable that she would follow the lead of defense witness and not feel she had to wear a mask as she wanted to fit in. Shirleen - a visibly sick employee showed up three days in a row and was allowed to work at an open workstation near the front door after returning from vacation and continued working until she ultimately