What the panel ordered
January 23, 2020 F&O rescinded; new finding of injury AOE/COE to left eye; all other issues deferred; matter returned to trial level.
Applicant sought reconsideration of the WCJ's January 23, 2020 Findings and Order denying injury AOE/COE; WCAB granted reconsideration, rescinded the F&O, and substituted new findings.
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.
Applicant was injured on employer's premises during her shift; a co-worker disclosed her presence to a caller, making employment a contributing cause; injury to left eye found AOE/COE.
From the decision · page 7FINDINGS OF FACT 1. the applicant sustained injury arising out of and in the course of employment to her left eye while employed as a cashier on March 27, 2019, by R & D Westwing, Inc., insured by Travelers Property Casualty Co. of America. The issue of injury to all other body parts is deferred. 2. All other issues are deferred.
No medical evidence admitted regarding injury to other body parts; issue deferred.
From the decision · page 7FINDINGS OF FACT 1. the applicant sustained injury arising out of and in the course of employment to her left eye while employed as a cashier on March 27, 2019, by R & D Westwing, Inc., insured by Travelers Property Casualty Co. of America. The issue of injury to all other body parts is deferred. 2. All other issues are deferred.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant was injured on employer's premises during her shift.
Favours Applicant prevailed
Injury on premises during employment creates presumption of AOE/COE unless connection is remote.
From the decision · page 4Applicant testified that a co-worker took a phone order on the day of the incident, wherein the caller asked about applicant by name, e.g., asked if the applicant worked there. Applicant's co-worker confirmed that applicant worked there and also told the caller that applicant was working that day. (MOH/SOE, November 21, 2019 trial, at 3:17-19.) Defendant does not dispute the veracity of applicant's testimony. Moreover, defendant called no witnesses at trial, so applicant's testimony is uncontradicted. If, as here, an injury occurs on the employer's premises while the worker is in the course of their employment, it is presumed that the injury also arises out of the employment where the employment is a contributory cause. (Schick, supra, at 160.)
Co-worker disclosed applicant's presence to a caller on the day of the attack.
Favours Applicant prevailed
Disclosure created a connection between employment and injury, making employment a contributing cause.
From the decision · page 4Applicant testified that a co-worker took a phone order on the day of the incident, wherein the caller asked about applicant by name, e.g., asked if the applicant worked there. Applicant's co-worker confirmed that applicant worked there and also told the caller that applicant was working that day. (MOH/SOE, November 21, 2019 trial, at 3:17-19.) Defendant does not dispute the veracity of applicant's testimony. Moreover, defendant called no witnesses at trial, so applicant's testimony is uncontradicted. If, as here, an injury occurs on the employer's premises while the worker is in the course of their employment, it is presumed that the injury also arises out of the employment where the employment is a contributory cause. (Schick, supra, at 160.)
No medical evidence admitted regarding injury to other body parts.
Favours neutral
Unable to evaluate AOE/COE for other body parts; issue deferred.
From the decision · page 6report, p. 2, MOH/SOE, p. 2.) While applicant may have sustained injury to other body parts, no medical evidence was admitted2 and as such we are unable to evaluate injuries to other body parts.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Lab. Code § 3600; Lab. Code § 3202; South Coast Framing v. WCAB (Clark); Department of Rehabilitation v. WCAB (Lauher); Lamb v. WCAB; Lundberg v. WCAB; California Compensation & Fire Co. v. WCAB (Schick)
Injury must arise out of and occur in the course of employment (AOE/COE); all reasonable doubts resolved in favor of employee; employment need only be a contributing cause.
Applied to find injury AOE/COE where applicant was injured on employer's premises and employment was a contributing cause.
From the decision · page 3To be compensable, an injury must arise out of and occur in the course of employment (AOE/COE). (Lab. Code, § 3600.) The employee bears the burden of proving injury AOE/COE by a preponderance of the evidence. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297-298, 302 [80 Cal.Comp.Cases 489]; Lab. Code, § 3600(a); 3202.5.) In applying this requirement, however, all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of the employee. (Department of Rehabilitation v. Workers' Comp. Appeals Bd. (Lauher) (2003) 30 Cal.4th 1281, 1290-1291 [68 Cal.Comp.Cases 831]; Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280 [39 Cal.Comp.Cases 310]; Lundberg v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 436, 439 [33 Cal.Comp.Cases 656].) As the California Supreme Court discussed in Lauher, Labor Code section1 3202 provides that:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony that a co-worker disclosed her presence to a caller was uncontradicted and undisputed by defendant.
From the decision · page 4Applicant testified that a co-worker took a phone order on the day of the incident, wherein the caller asked about applicant by name, e.g., asked if the applicant worked there. Applicant's co-worker confirmed that applicant worked there and also told the caller that applicant was working that day. (MOH/SOE, November 21, 2019 trial, at 3:17-19.) Defendant does not dispute the veracity of applicant's testimony. Moreover, defendant called no witnesses at trial, so applicant's testimony is uncontradicted. If, as here, an injury occurs on the employer's premises while the worker is in the course of their employment, it is presumed that the injury also arises out of the employment where the employment is a contributory cause. (Schick, supra, at 160.)
Police report documenting bruise, swelling, and contusion to left eye.
From the decision · page 5Here, the parties stipulated that applicant sustained injury AOE/COE to her left eye, back, and psyche. (Amended pre-trial conference statement, dated November 21, 2019, p. 2; MOH/SOE, p. 2.) Based on the police report, wherein the officer notes a bruise, swelling, and contusion to the left eye, we will find injury AOE/COE to applicant's eye. (Exhibit 100, March 27, 2019 police
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