ADJ14200347 · October 10, 2022

The court found insufficient medical evidence to establish causation of Covid-19 injury by a reasonable medical probability, requiring further development with a QME panel.

From the decision · page 5There was evidence to support Applicant's claim that he was diagnosed with Covid, namely a reference in records reviewed by the ortho QME, Dr. Elias, from James A. Sharkoff, M.D. / Pueblo Medical Center, indicating that on July 31, 2020 Applicant was seen for and diagnosed with Covid 19 pneumonia [Ex Y, P5]. However, as the Court noted, factual evidence of exposure to Covid at work was non-existent. In addition, there was an absence of medical opinion on the issue of causation.

The court found the evidence supported the finding of a right wrist injury causally related to the industrial incident in July 2019, but not a neck injury.

From the decision · page 6The Court found after trial that Applicant sustained injury to his right wrist, but not to his neck. Defendant argues that the evidence does not support the finding of a wrist injury.

Medical opinion from QME Dr. Elias found the right wrist injury was 100% caused by the industrial injury on July 16, 2019.

Favours Applicant prevailed

This medical opinion supported the finding of compensability for the wrist injury.

From the decision · page 7With regard to the right wrist, this patient had an injury in which a piece of scaffold fell on his right wrist on July l 6, 2019 hyperextending the wrist. His current impairment with the right wrist is 100% caused by and apportioned to the industrial injury which occurred on July 16, 2019. [Ex Z, P1].

Applicant was diagnosed with Covid-19 pneumonia on July 31, 2020, but there was no evidence of workplace exposure or outbreak.

Favours Defendant prevailed

Lack of medical opinion and factual evidence linking Covid-19 illness to employment led to denial of compensability for Covid-19 injury.

From the decision · page 5There was evidence to support Applicant's claim that he was diagnosed with Covid, namely a reference in records reviewed by the ortho QME, Dr. Elias, from James A. Sharkoff, M.D. / Pueblo Medical Center, indicating that on July 31, 2020 Applicant was seen for and diagnosed with Covid 19 pneumonia [Ex Y, P5]. However, as the Court noted, factual evidence of exposure to Covid at work was non-existent. In addition, there was an absence of medical opinion on the issue of causation.

The QME, Dr. Elias, stated the right wrist impairment was 100% caused by and apportioned to the industrial injury on July 16, 2019.

The QME's opinion was relied upon to support the finding of industrial causation for the wrist injury.

From the decision · page 7With regard to the right wrist, this patient had an injury in which a piece of scaffold fell on his right wrist on July l 6, 2019 hyperextending the wrist. His current impairment with the right wrist is 100% caused by and apportioned to the industrial injury which occurred on July 16, 2019. [Ex Z, P1].

McAllister v WCAB, 33 CCC 660 (1968)

Expert medical evidence is required to establish industrial causation by a reasonable medical probability.

Applied to require medical opinion on causation of Covid-19 injury and wrist injury.

From the decision · page 6injury and the assertions about the cause of injury by medical opinion. [Western Growers Ins. Co. v. WCAB (1993) 58 CCC 323]. Expert medical evidence is required to establish industrial causation by a reasonable medical probability [McAllister v WCAB, 33 CCC 660 (1968)]. Likewise, medical probability is required for an adverse finding as well. Neither Applicant's nor the employer's testimony is a substitute for medical proof [Bstandig v. WCAB, 42 CCC 114 (1977)]. Again, the record needs to be developed further.

Bstandig v. WCAB, 42 CCC 114 (1977)

Medical probability is required for an adverse finding of no injury as well as for a finding of injury.

Applied to require medical substantiation for both findings of injury and no injury.

From the decision · page 6injury and the assertions about the cause of injury by medical opinion. [Western Growers Ins. Co. v. WCAB (1993) 58 CCC 323]. Expert medical evidence is required to establish industrial causation by a reasonable medical probability [McAllister v WCAB, 33 CCC 660 (1968)]. Likewise, medical probability is required for an adverse finding as well. Neither Applicant's nor the employer's testimony is a substitute for medical proof [Bstandig v. WCAB, 42 CCC 114 (1977)]. Again, the record needs to be developed further.

Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783

A decision on threshold issues such as injury arising out of employment is a final decision subject to reconsideration.

Applied to determine finality of WCJ decision on injury issue.

From the decision · page 1Case No. ADJ14200347 If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment, jurisdiction, the existence of an employment relationship and statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later be challenged by a petition for reconsideration once a final decision issues. A decision issued by the Appeals Board may address a hybrid of both threshold and interlocutory issues. If a party challenges a hybrid decision, the petition seeking relief is treated as a petition for reconsideration because the decision resolves a threshold issue. However, if the

Employer's witness testimony denying workplace Covid outbreak and absence of other employees with Covid at the time.

From the decision · page 5The employer's witness explained that the applicant did take off work in July of 2020 [6/9/22 SOE, P8, L1-2]. In fact, the witness indicated neither she nor anyone else in the company knew that the Applicant had Covid until he returned from the hospital with a clean Covid test. [6/9/22 SOE, P8, L1-5]. Most importantly, and contrary to Applicant's speculation, the employer's witness confirmed that there was no outbreak, that is, no other employees had Covid in July of 2020 or before that date [6/9/22 SOE P8, L2-3]. She said the only other Covid case in the company occurred a couple of months later with another employee [6/9/22 SOE P8, L3].

Medical reports and MRI findings consistent with wrist injury and mechanism described by Applicant.

From the decision · page 7The PQME later also diagnosed a wrist strain [Ex V, P5]. An MRI disclosed some structural damage to the wrist [Ex 14]. In May 2021, an MRI of the wrist read by Dr. Amirhamzeh disclosed positive findings related to degeneration and tear of ligaments [EX 14].

Applicant's testimony about contracting Covid-19 at work and hospitalization supports the claim of injury, but lacks medical causation evidence.