ADJ13511723 — California WCAB decision

ADJ13511723 · September 28, 2022

The WCAB rescinded the WCJ's Findings and Order and substituted a new Findings and Award, finding applicant qualified for the COVID-19 presumption, that defendant failed to rebut the presumption, and that applicant sustained injury in the form of COVID-19-related illness including pneumonia to the lungs; further medical treatment was awarded; other body parts deferred.

Issues decided

Medical opinions weighed

Authorities named

District office

San Bernardino

What the panel ordered

Applicant sought reconsideration of the WCJ's Findings and Order issued August 5, 2021, which found no injury arising out of employment; the WCAB granted reconsideration to study the legal and factual issues and now issues a Decision After Reconsideration.

Read the official decision →

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.

AOE/COEApplicant prevailedlungs

Applicant qualified for the COVID-19 presumption under Labor Code section 3212.86; defendant failed to rebut the presumption with substantial evidence; applicant sustained injury in the form of COVID-19-related illness including pneumonia to the lungs; other body parts deferred.

From the decision · page 2Applicant claimed injury in the form of COVID-19-related illness to the throat, loss of appetite, loss of taste, weakness, breathing, pneumonia, eyesight, hands, memory loss, headaches, loss of hair, psyche, neurological problems, and stress, while employed as a home health care worker by defendant State of California/IHSS (defendant) on June 26, 2020.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant tested positive for COVID-19 within the statutory time frame after performing labor at employer's direction.

Favours Applicant prevailed

This fact established the initial presumption of industrial injury under Labor Code section 3212.86.

From the decision · page 2On July 2, 2020, testing ordered under the supervision of attending physician Ali Etemadian, D.O., detected the COVID-19 virus. (Ex. 11, Records of San Antonio Regional Hospital, dated July 2, 2020, at p. 195.)

Defendant failed to provide substantial evidence that applicant contracted COVID-19 outside of employment.

Favours Applicant prevailed

Without substantial evidence to rebut, the presumption of industrial injury stood, favoring applicant.

From the decision · page 6Here, we are not persuaded that defendant has met this burden. Defendant offers no substantial evidence that applicant was infected with the COVID-19 virus elsewhere. Defendant offers no treatment reports or medical-legal reporting ascribing applicant's illness to nonindustrial factors. Defendant offers no witness testimony addressing collateral sources of COVID exposure. Other than applicant's self-reporting, there is no documentary or testimonial evidence regarding whether applicant's employer or her roommates were COVID positive.

Medical records and diagnoses from San Antonio Regional Hospital and treating physicians confirmed COVID-19-related illness and lung injury in the form of pneumonia.

Favours Applicant prevailed

Supported the finding of injury arising out of and in the course of employment.

From the decision · page 2On June 30, 2020, applicant was hospitalized at San Antonio Regional Hospital for eight days, with diagnoses of hypoxia, multifocal pneumonia, infection due to 2019 novel coronavirus, diffuse abdominal pain and diarrhea. (Ex. 9, records of San Antonio Regional Hospital, various dates, p. 71.) Applicant was not provided with a Spanish interpreter at the hospital. (MOH, at 4:12.)

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.

PTPRelied upon

Diagnosed COVID-19, headache, breathing abnormalities, chest pain; found applicant temporarily totally disabled; later found applicant permanent and stationary and concluded COVID-19 virus was acquired from work as caretaker.

Dr. Zlotolow noted applicant's contact with COVID-19 positive clients and lack of other exposure sources, supporting industrial causation.

From the decision · page 3On August 19, 2020, Ronald Zlotolow, M.D., evaluated applicant and issued an initial one- page assessment, finding applicant temporarily totally disabled. (Ex. 1, Report of Ronald Zlotolow, M.D., dated August 19, 2020, at p. 1.) Dr. Zlotolow diagnosed COVID-19, headache, breathing abnormalities and chest pain. (Ex. 2, Doctor's First Report, dated August 31, 2002, at p.3.)

PTPRelied upon

Attending physician who supervised COVID-19 testing and released applicant from inpatient care with diagnoses including hypoxia, multifocal pneumonia, and COVID-19 infection.

Medical records from Dr. Etemadian support diagnosis of COVID-19-related illness and lung injury.

From the decision · page 2On June 30, 2020, applicant was hospitalized at San Antonio Regional Hospital for eight days, with diagnoses of hypoxia, multifocal pneumonia, infection due to 2019 novel coronavirus, diffuse abdominal pain and diarrhea. (Ex. 9, records of San Antonio Regional Hospital, various dates, p. 71.) Applicant was not provided with a Spanish interpreter at the hospital. (MOH, at 4:12.)

PTPPartially credited · neurology

Evaluated applicant for neurological complaints but deferred permanent disability rating to internal medicine evaluation; no neurological treatment needed.

Neurological evaluation noted but did not contradict COVID-19 lung injury diagnosis.

From the decision · page 3On October 5, 2020, Isaac Regev, M.D., evaluated applicant in neurology, noting complaints of headaches and dizziness, as well as chest discomfort and shortness of breath. (Ex. 8, Report of Isaac Regev, M.D., dated October 5, 2020, at p. 1.) Dr. Regev concluded there was no need for neurological treatment, and deferred any permanent disability rating to the internal medicine evaluation. (Id. at p.4.)

ADJ13511723 · September 28, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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