ADJ12104893 — California WCAB decision

What the panel ordered

Findings and Order of June 28, 2021 rescinded; case remanded to trial level for further proceedings and new decision by the WCJ.

Petition for reconsideration granted; decision after reconsideration issued rescinding the WCJ's Findings and Order of June 28, 2021, and remanding for further proceedings and new decision by the WCJ.

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/COERemandedchest · circulatory system · digestive system · respiratory system · lumbar spine · cervical spine · sexual dysfunction · bilateral upper extremities · right lower extremity · stress · anxiety · depression · sleep with insomnia

The WCJ's denial was rescinded due to unresolved factual and medical issues, including the need for further evidence on exposure to fungal spores and the latency period of Valley Fever, requiring remand for further proceedings.

From the decision · page 1In the Findings and Order of June 28, 2021, the Workers' Compensation Administrative Law Judge ("WCJ") denied applicant's claim of industrial injury caused by disseminated coccidioidomycosis (advanced stage "Valley Fever"). Specifically, the WCJ found that applicant, while employed as an assistant principal by the Los Angeles Unified School District during the period December 2, 2017 through June 15, 2018, did not sustain injury arising out of and occurring in the course of employment to her chest, circulatory system, digestive system, respiratory system, lumbar spine, cervical spine, sexual dysfunction, bilateral upper extremities, right lower extremity, stress, anxiety, depression, and sleep with insomnia.

The facts that decided it

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

Applicant consistently reported exposure to wildfire smoke and symptoms to multiple physicians, supporting plausibility of exposure at work.

Favours Applicant prevailed

This evidence favored the applicant's claim and undermined the WCJ's finding of lack of exposure evidence.

From the decision · page 5In her Report, the WCJ also suggests that applicant was required to testify under oath to establish that she was exposed to wildfire smoke while she was at work. Again, the WCJ refers to no legal authority in support of this premise. Further, it is contradicted by the fact that applicant was consistent in reporting to various evaluating physicians that she was exposed to wildfire at work. In a report dated October 25, 2019, Dr. Johnson recorded that in early December 2017, applicant "had very substantial exposure over the succeeding days to the Thomas Creek fire, with substantial respiratory discomfort, eye discomfort and wheezing." (Exhibit 9, p. 1.) In a report dated December 2, 2019, PQME Zagelbaum recorded a "history of present illness," according to which applicant reported that in December 2017 she was involved in school activities to help in the school management of issues related to the Thomas Fire. At that time, she spent time out of the school building in Sylmar and encountered exposure to pungent odors and black smoke, and she experienced a variety of symptoms which over time included difficulty breathing, burning of her eyes, and cough. Applicant also reported to Dr.

There was no direct evidence of fire, smoke, or spores at the workplace or home, and no testimony or witnesses were presented.

Favours Defendant prevailed

This lack of direct evidence was noted but did not meet the burden to deny the claim outright, leading to remand for further development.

From the decision · page 24. Applicant introduced medical reports and the transcript of cross-examination of a physician. No direct evidence regarding any fire, smoke or wind conditions at any location on any date was offered. No evidence of the exact location of the applicant's employment on any given date or time was offered. No evidence of the existence of coccidiomycosis spores at any location at all, including the applicant's two job sites in the East San Fernando Valley or her home in Riverside County, were offered. No requests were made to take judicial notice of any event, geographic fact, or atmospheric condition.2

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.

QMEPartially credited · pulmonology

Dr. Zagelbaum opined a short latency period of about three weeks for Valley Fever and found it medically improbable that exposure to wildfire smoke in December 2017 causally contributed to the disease diagnosed in June 2018.

The WCJ found Dr. Zagelbaum credible and persuasive on the latency period and causation timing, but the Appeals Board noted unresolved issues requiring further development.

From the decision · page 3Given the applicant clearly is suffering from Valley Fever, the doctors focused on the information available to them to attempt to extrapolate when an injurious exposure could have occurred bringing latency period into question. Dr. Zagelbaum is credible and persuasive in rejecting the various fires, based on the dates given to him by the parties, due to a three-week latency period, with a first diagnosis in 6- 2018, when the applicant first reported symptoms of Valley Fever, Exhibit 1, p. 4, Exhibit AA, Report of Dr. Zagelbaum 12-4-2019 p.174-175.

PTPPartially credited

Dr. Pietruszka contended a longer latency period for Valley Fever, suggesting symptoms could appear within six months of exposure, supporting the applicant's history of exposure to wildfire smoke and fungal spores.

The Appeals Board found Dr. Pietruszka's opinion credible enough to require further development of the record, despite the WCJ's skepticism about the supporting article.

From the decision · page 4Dr. Pietruszka differs from Dr. Zagelbaum in that he contends disseminated coccidioidomycosis occurs within 6 months of the primary exposure, Exhibit 3, Report of Marvin Pietruszka 3-2-2021 p. 13. Dr. Pietruszka bases his entire argument on one single article which is not attached or quoted, but listed in the footnotes as from Reviews of the Medical Institute of Sao Paola. No location of the medical institute is offered, no evidence of the author's expertise and no evidence of the medical institute's experience with this disease in California are offered. This lone footnote without support is not credible or persuasive.

otherPartially credited

Dr. Johnson concurred with the diagnosis of Valley Fever and opined the disease onset was likely in May 2018, not tied to any fire exposure.

His opinion supported the shorter latency period and was considered in the Appeals Board's analysis.

From the decision · page 22. The applicant was previously diagnosed with coccidiomycosis, "Valley Fever" on 7-04-2018 at Kaiser Foundation Hospital where she was hospitalized. Consultant Royce Johnson, M.D. of the Kern Medical Center, which is operated by the Kern County Hospital Authority, concurred with the diagnosis on 10-25-2019, Exhibit 9. Primary Treating Physician Marvin Pietruszka M.D. and Panel Qualified Medical Examiner Gary Zagelbaum M.D. concurred in the diagnosis. The issue at trial was whether the disease [arose] out of and occurred in the course of her employment.

The rules the panel named

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

South Coast Framing v. Workers' Comp. Appeals Bd. (2015) 61 Cal.4th 291; Guerra v. Workers' Comp. Appeals Bd. (Rodas) (2016) 246 Cal.App.4th 1301

Applicant must demonstrate it is plausible she was exposed to fungal spores at work; no need to prove greater danger than at home.

The Board rejected the WCJ's requirement that applicant prove greater danger at work, clarifying the burden of proof.

From the decision · page 4More importantly, we note that various aspects of the analysis of industrial causation within the WCJ's Report seem to reflect a misunderstanding of applicant's burden of proof. On page five, the WCJ states that the record shows a "lack of factual foundation" to support applicant's claim. For instance, the WCJ states that "there was no evidence that the applicant was exposed to any danger at work greater than at her residence in Riverside County." This is not a relevant consideration, because applicant only needs to demonstrate that it is plausible she was exposed to the fungal spores that cause Valley Fever at work; she had no burden to establish that this danger

McAllister v. Workers' Comp. Appeals Bd.

Injury causation requires reasonable probability, not scientific certainty, of exposure to wildfire smoke and fungal spores.

The Board found the WCJ erred in requiring scientific certainty and expert testimony from the injured worker.

From the decision · page 6The WCJ also states that applicant failed to prove "that smoke of any density, wind of any velocity, or spores of any kind reached the vicinity at any distance, of the applicant while she was working," that "there was no evidence of the amount of time the applicant spent outdoors or the exact dates when the fire was in a position to expose the applicant," and that applicant did not "estimate the distance from her...where exactly she was and for how long" nor "describe the strength of the wind, or the density of the smoke." To the extent the WCJ relied on these factors to deny applicant's claim, we are persuaded the WCJ erred because injured workers are neither qualified nor required to provide expert scientific testimony. Moreover, applicant's burden of proving she was exposed to wildfire smoke and fungal spores is one of reasonable probability, not scientific certainty. (McAllister v.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Applicant's consistent history of exposure to wildfire smoke and symptoms reported to multiple physicians.

From the decision · page 5In her Report, the WCJ also suggests that applicant was required to testify under oath to establish that she was exposed to wildfire smoke while she was at work. Again, the WCJ refers to no legal authority in support of this premise. Further, it is contradicted by the fact that applicant was consistent in reporting to various evaluating physicians that she was exposed to wildfire at work. In a report dated October 25, 2019, Dr. Johnson recorded that in early December 2017, applicant "had very substantial exposure over the succeeding days to the Thomas Creek fire, with substantial respiratory discomfort, eye discomfort and wheezing." (Exhibit 9, p. 1.) In a report dated December 2, 2019, PQME Zagelbaum recorded a "history of present illness," according to which applicant reported that in December 2017 she was involved in school activities to help in the school management of issues related to the Thomas Fire. At that time, she spent time out of the school building in Sylmar and encountered exposure to pungent odors and black smoke, and she experienced a variety of symptoms which over time included difficulty breathing, burning of her eyes, and cough. Applicant also reported to Dr.

Medical recordsfavours Defendant prevailed

Lack of direct evidence of fire, smoke, or spores at the workplace or home, and absence of testimony or witnesses.

From the decision · page 24. Applicant introduced medical reports and the transcript of cross-examination of a physician. No direct evidence regarding any fire, smoke or wind conditions at any location on any date was offered. No evidence of the exact location of the applicant's employment on any given date or time was offered. No evidence of the existence of coccidiomycosis spores at any location at all, including the applicant's two job sites in the East San Fernando Valley or her home in Riverside County, were offered. No requests were made to take judicial notice of any event, geographic fact, or atmospheric condition.2

ADJ12104893 · February 12, 2024