ADJ9553930 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied

Petition for Reconsideration filed by defendant Department of Developmental Services challenging Findings of Fact issued March 30, 2021, denied by WCAB panel on June 22, 2021

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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 prevailedrespiratory system

The applicant met the burden of proof by a preponderance of the evidence including credible testimony, unrebutted documentary evidence, and substantial medical opinion from PQME Dr. Meth that asbestos exposure contributed to the decedent's death.

From the decision · page 8The sole issue in this matter is whether the applicant sustained an injury arising out of and in the course of his employment (hereinafter referred to as Injury "AOE/COE") to his respiratory system, abdomen and asbestos resulting in his death on July 28, 2013. The applicant bears the burden of proof as to this issue.1 Here, in order to meet its burden, applicant's counsel offered both testimonial and documentary evidence to show that the decedent was exposed to asbestos while working for the employer. The applicant's widow testified that her husband told her that he had issues with asbestos at Lanterman because there were broken floor tiles which caused fibers to go into the air when the floor was vacuumed (Summary of Evidence, page 4, line 19-21). She further testified that her husband received a letter from the administration which told them about the issue (Summary of Evidence, page 4, lines 21-22).

The facts that decided it

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

Testimony of Eileen the applicant that decedent reported asbestos issues at Lanterman due to broken floor tiles causing airborne fibers when vacuumed.

Favours Applicant prevailed

Credible and unrebutted testimony supported finding of industrial causation.

From the decision · page 5The Petitioner next contends that there was no evidence offered by the applicant to assert that the applicant was actually exposed to asbestos fibers while employed by Lanterman. The Petitioner analogizes the matter to the Skip Fordyce1 case. Admittedly, this case bears some similarity to the Skip Fordyce matter; however, this case also bears similarity to the McAllister2 case. In McAllister the Court recognized that the Workers' Compensation Appeals Board is bound to uphold a claim in which the proof of industrial causation is reasonably probable, although not certain or "convincing" McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 419. Here, the Finding in this matter was based on more than the mere testimony of Eileen the applicant. Eileen the applicant credibly testified at trial that her husband told her that he had issues with asbestos at Lanterman because there were broken floor tiles which caused fibers to go into the air when the floor was vacuumed (Summary of Evidence, page 4, lines 19-21). She also testified that she had a conversation with Wayne Hendricks, her husband's supervisor, about asbestos and the problems with the broken tile while vacuuming (Summary of Evidence, page 5, lines 12-14). Eileen the applicant's testimony was the only

Medical opinion of Dr. Meth that asbestos exposure and work stress contributed to decedent's small cell lung cancer and death.

Favours Applicant prevailed

Substantial medical evidence relied upon by the WCJ and not rebutted.

From the decision · page 4In this matter, the parties obtained a PQME, Dr. Meth. Dr. Meth formulated his opinion based upon the information provided to him by the parties. First, he reviewed records from the Lanterman Developmental Center (Joint Exhibit A3 at pages 18-19). Second, he reviewed the deposition of Eileen the applicant (Joint Exhibit A3, page 19) and he interviewed her (Joint Exhibit A4 at page 1-2). Third, Dr. Meth relied upon a White Paper from John Howard entitled "9-11 Minimum Latency and Types or Categories of Cancer" to formulate his opinion that the decedent's four years of exposure to asbestos made it medically probable that his exposure contributed in a small way to the development of his small cell lung

Unrebutted documentary evidence including Vanir report and administrator's email showing substantial asbestos presence at the workplace.

Favours Applicant prevailed

Supported the finding of industrial causation by preponderance of evidence.

From the decision · page 6The applicant offered a variety of evidence to support its contention of industrial causation. Aside from the testimony of Eileen the applicant, the parties jointly offered the medical reporting of the PQME, Dr. Meth. Again, there was no evidence offered to rebut or challenge Dr. Meth's opinion. Next, the applicant offered the Vanir report (Exhibit 4). This report stated that "amount of asbestos at the facility is unknown but substantial...The facility has an abundance of the 9"x9" floor tile containing asbestos that were installed with mastic containing asbestos...The facility's policy is to assume all the 9"x9" tile are asbestos...Full abatement is required, not just encapsulation (emphasis added) (Exhibit 4 at page L-22). The applicant also offered an email4 from an administrator to illustrate the prevalence of asbestos. Again, there was no evidence offered to rebut this email.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and set forth reasoning in support of conclusions.

Applied to evaluate the PQME's medical opinion for substantial evidence.

From the decision · page 4It is well established that a decision must be supported by substantial medical evidence. Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal. 3d 274, 280-281. Case law has indicated that, in order for a medical opinion to be substantial, it "must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604.

Labor Code Section 3202.5

Preponderance of the evidence means evidence that has more convincing force and greater probability of truth when weighed with opposing evidence.

Applied to determine burden of proof for industrial causation.

From the decision · page 6All parties...shall meet the evidentiary burden of proof on all issues by a preponderance of the evidence... "Preponderance of the evidence" means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. (emphasis added).

McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408

The Workers' Compensation Appeals Board is bound to uphold a claim where proof of industrial causation is reasonably probable, although not certain or convincing.

Applied to support finding of industrial causation by preponderance of evidence.

From the decision · page 5The Petitioner next contends that there was no evidence offered by the applicant to assert that the applicant was actually exposed to asbestos fibers while employed by Lanterman. The Petitioner analogizes the matter to the Skip Fordyce1 case. Admittedly, this case bears some similarity to the Skip Fordyce matter; however, this case also bears similarity to the McAllister2 case. In McAllister the Court recognized that the Workers' Compensation Appeals Board is bound to uphold a claim in which the proof of industrial causation is reasonably probable, although not certain or "convincing" McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 419. Here, the Finding in this matter was based on more than the mere testimony of Eileen the applicant. Eileen the applicant credibly testified at trial that her husband told her that he had issues with asbestos at Lanterman because there were broken floor tiles which caused fibers to go into the air when the floor was vacuumed (Summary of Evidence, page 4, lines 19-21). She also testified that she had a conversation with Wayne Hendricks, her husband's supervisor, about asbestos and the problems with the broken tile while vacuuming (Summary of Evidence, page 5, lines 12-14). Eileen the applicant's testimony was the only

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

From the decision · page 5The Petitioner next contends that there was no evidence offered by the applicant to assert that the applicant was actually exposed to asbestos fibers while employed by Lanterman. The Petitioner analogizes the matter to the Skip Fordyce1 case. Admittedly, this case bears some similarity to the Skip Fordyce matter; however, this case also bears similarity to the McAllister2 case. In McAllister the Court recognized that the Workers' Compensation Appeals Board is bound to uphold a claim in which the proof of industrial causation is reasonably probable, although not certain or "convincing" McAllister v. Workers' Comp. Appeals Bd. (1968) 69 Cal.2d 408, 419. Here, the Finding in this matter was based on more than the mere testimony of Eileen the applicant. Eileen the applicant credibly testified at trial that her husband told her that he had issues with asbestos at Lanterman because there were broken floor tiles which caused fibers to go into the air when the floor was vacuumed (Summary of Evidence, page 4, lines 19-21). She also testified that she had a conversation with Wayne Hendricks, her husband's supervisor, about asbestos and the problems with the broken tile while vacuuming (Summary of Evidence, page 5, lines 12-14). Eileen the applicant's testimony was the only

Documentary evidencefavours Applicant prevailed

Unrebutted documentary evidence including Vanir report indicating substantial asbestos presence and an email from an administrator acknowledging suspected asbestos under carpet.

From the decision · page 6The applicant offered a variety of evidence to support its contention of industrial causation. Aside from the testimony of Eileen the applicant, the parties jointly offered the medical reporting of the PQME, Dr. Meth. Again, there was no evidence offered to rebut or challenge Dr. Meth's opinion. Next, the applicant offered the Vanir report (Exhibit 4). This report stated that "amount of asbestos at the facility is unknown but substantial...The facility has an abundance of the 9"x9" floor tile containing asbestos that were installed with mastic containing asbestos...The facility's policy is to assume all the 9"x9" tile are asbestos...Full abatement is required, not just encapsulation (emphasis added) (Exhibit 4 at page L-22). The applicant also offered an email4 from an administrator to illustrate the prevalence of asbestos. Again, there was no evidence offered to rebut this email.

ADJ9553930 · June 22, 2021

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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