ADJ11292351 · January 22, 2024

The WCJ found that granddaughter Karina was not a total dependent under Labor Code section 3501 because she was not an employee-parent, but was a partial dependent based on evidence of financial support from decedent and her mother.

From the decision · page 12(a) A child under the age of 18 years, or a child of any age found by any trier of fact, whether contractual, administrative, regulatory, or judicial, to be physically or mentally incapacitated from earning, shall be conclusively presumed to be wholly dependent for support upon a deceased employee-parent with whom that child is living at the time of injury resulting in death of the parent or for whose maintenance the parent was legally liable at the time of injury resulting in death of the parent.

The WCJ and WCAB found substantial evidence that decedent sustained industrial injury to his lungs from influenza contracted at work, but he was not entitled to the statutory presumption of pneumonia injury under Labor Code section 3212 because he was not a specified public safety worker covered by that presumption.

From the decision · page 1Applicant and Defendant each seek reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of November 3, 2023, wherein it was found that while employed during a cumulative period ending December 24, 2017, decedent sustained industrial injury to his lungs leading to his death. Although the WCJ found industrial injury, it was found that decedent was not entitled to any statutory presumption of pneumonia for certain specified public safety workers. (Lab. Code, § 3212 et seq.) It was found that widow Gloria the applicant was decedent's total dependent at the time of injury, and that his daughter Celia and granddaughter Karina were partial dependents.

Decedent's job duties involved close contact with the public, including arresting people and breaking up fights, increasing risk of contracting influenza at work.

Favours Applicant prevailed

Supported finding of industrial injury causation by showing special risk of exposure beyond general public.

From the decision · page 11Here, Dr. Hendel repeatedly stated that close proximity with an infected person is the way to contract influenza. (Exhibit 104 at p. 19:18-19:22; 19:23-21:5.) Dr. Hendel further testified that [decedent's] injurious exposure was most likely between the period December 10, 2017 and December 15, 2017. Gloria the applicant's credible and unrebutted testimony was that during that time frame, her husband's activities were limited to working because he was preparing to take vacation during the following week, and she also credibly testified that her husband was the first member of the family to become ill. Further, Dr. Hendel testified that it would be medically reasonable/probable for [decedent] to be exposed to influenza while in contact with guards, separating fights, and arresting people, and that the applicant's job duties placed him at a greater risk than the general public for contracting influenza.

Widow Gloria the applicant's credible testimony that decedent was the first family member to become ill and that his activities during the exposure period were limited to work.

Favours Applicant prevailed

Supported finding that decedent's exposure to influenza was industrial and not from home or other sources.

From the decision · page 11Here, Dr. Hendel repeatedly stated that close proximity with an infected person is the way to contract influenza. (Exhibit 104 at p. 19:18-19:22; 19:23-21:5.) Dr. Hendel further testified that [decedent's] injurious exposure was most likely between the period December 10, 2017 and December 15, 2017. Gloria the applicant's credible and unrebutted testimony was that during that time frame, her husband's activities were limited to working because he was preparing to take vacation during the following week, and she also credibly testified that her husband was the first member of the family to become ill. Further, Dr. Hendel testified that it would be medically reasonable/probable for [decedent] to be exposed to influenza while in contact with guards, separating fights, and arresting people, and that the applicant's job duties placed him at a greater risk than the general public for contracting influenza.

Granddaughter Karina was not an employee-parent and thus not entitled to total dependency presumption under Labor Code section 3501.

Favours Applicant prevailed

Determined that Karina was a partial dependent based on financial support evidence.

From the decision · page 12(a) A child under the age of 18 years, or a child of any age found by any trier of fact, whether contractual, administrative, regulatory, or judicial, to be physically or mentally incapacitated from earning, shall be conclusively presumed to be wholly dependent for support upon a deceased employee-parent with whom that child is living at the time of injury resulting in death of the parent or for whose maintenance the parent was legally liable at the time of injury resulting in death of the parent.

Dr. Hendel opined that it was reasonably probable that decedent contracted influenza at work due to exposure to the public, which caused pneumonia leading to death. He stated that close contact with infected individuals during job duties such as arresting people and breaking up fights increased the risk of contracting influenza.

Dr. Hendel's opinion was based on review of records, deposition testimony, and job duties, and was found to be substantial evidence supporting industrial injury causation.

From the decision · page 4On July 10, 2020, Eli E. Hendel, M.D., issued a Qualified Medical Evaluation (QME) report after reviewing records. As relevant herein, Dr. Hendel stated that, if the applicant's job duties included exposure to the public, particularly when exposed to students in middle school and high school, there was a reasonable medical probability that the applicant contracted influenza at work and that the influenza caused pneumonia. (Exhibit 101, Report of Eli Hendel, July 10, 2020, pp. 13-14.)

Bethlehem Steel Co. v. Industrial Acc. Com. (1943) 21 Cal. 2d 742

An employee can establish industrial causation of a communicable disease by showing it is more likely the disease was contracted at work or that employment subjected the employee to a special risk of exposure beyond the general population.

Applied to find industrial injury based on decedent's job duties and exposure to the public.

From the decision · page 10Therefore, in cases such as this one where the parties dispute whether employment contributed to an employee acquiring a communicable disease, the essential questions of when and where [decedent] contracted the disease may be unanswerable with any certainty. In those circumstances, the Appeals Board has explained that an employee can establish industrial causation by demonstrating that it is more likely [decedent] acquired the disease at work or that the employment subjected the employee to a special risk of exposure in excess of that of the general population. (Bethlehem Steel Co. v. Industrial Acc. Com. (1943) 21 Cal. 2d 742.) For example, a detective's Hepatitis B infection arose out of and in the course of employment because the nature of his work exposed him to drug addicts and needles and those exposures resulted in a higher probability of contracting Hepatitis B than the general population. (City of Fresno v. Workers' Comp. Appeals Bd. (Bradley) (1992) 57 Cal. Comp. Cases 375 (writ den.).) In another case, a Hepatitis C infection contracted by a sewage worker was found industrial based on medical reporting that it was "more probable than not" that [decedent] contracted the virus at work. (City of Turlock v. Workers' Comp Appeals Bd. (STK09YYZZZ) (2007) 72 Cal. Comp. Cases 931, 934 (writ den.).)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

A medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and supported by reasoning to constitute substantial evidence.

Applied to evaluate Dr. Hendel's opinion as substantial evidence supporting industrial injury causation.

From the decision · page 10Further, any decision must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3

Labor Code section 3501

A child under 18 or physically/mentally incapacitated child living with or legally supported by deceased employee-parent is conclusively presumed wholly dependent.

Applied to determine that granddaughter Karina was not a total dependent because she was not an employee-parent, but partial dependency was a factual issue.

From the decision · page 12(a) A child under the age of 18 years, or a child of any age found by any trier of fact, whether contractual, administrative, regulatory, or judicial, to be physically or mentally incapacitated from earning, shall be conclusively presumed to be wholly dependent for support upon a deceased employee-parent with whom that child is living at the time of injury resulting in death of the parent or for whose maintenance the parent was legally liable at the time of injury resulting in death of the parent.

Gloria the applicant's credible and unrebutted testimony about decedent's job duties and exposure to the public during the relevant period

From the decision · page 11Here, Dr. Hendel repeatedly stated that close proximity with an infected person is the way to contract influenza. (Exhibit 104 at p. 19:18-19:22; 19:23-21:5.) Dr. Hendel further testified that [decedent's] injurious exposure was most likely between the period December 10, 2017 and December 15, 2017. Gloria the applicant's credible and unrebutted testimony was that during that time frame, her husband's activities were limited to working because he was preparing to take vacation during the following week, and she also credibly testified that her husband was the first member of the family to become ill. Further, Dr. Hendel testified that it would be medically reasonable/probable for [decedent] to be exposed to influenza while in contact with guards, separating fights, and arresting people, and that the applicant's job duties placed him at a greater risk than the general public for contracting influenza.

Dr. Hendel's medical opinion that decedent's job duties placed him at increased risk of contracting influenza compared to the general public

From the decision · page 11(Exhibit 103 at pp. 27:25- 29:16; 39:15-40:11; 25:17-26:13; 42:2-42:22; Exhibit 104 at pp. 59:9-59:15; 70:5-70:9; 73:19-74:19.) Thus, [decedent's] job descriptions and Gloria the applicant's testimony reflect that his job required him to have close contact with other people, and the more close contact he had with others, he higher his risk of contracting influenza would be. Accordingly, I found that the applicant's dependents met their burden of proving that[decedent's] employment placed him at an increased risk of contracting influenza.