What the panel ordered
The WCAB rescinded the WCJ's Findings and Order and substituted a new Findings and Award, finding applicant qualified for the COVID-19 presumption, that defendant failed to rebut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.
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.
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.
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.
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.)
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.)
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.)
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3212.86
Labor Code section 3212.86 presumption for COVID-19-related illness
Applicant qualified for the presumption; defendant failed to rebut it; injury found industrial.
From the decision · page 5(1) The employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee's place of employment at the employer's direction. (2) The day referenced in paragraph (1) on which the employee performed labor or services at the employee's place of employment at the employer's direction was on or after March 19, 2020, and on or before July 5, 2020. The date of injury shall be the last date the employee performed labor or services at the employee's place of employment at the employer's direction. (3) If paragraph (1) is satisfied through a diagnosis of COVID-19, the diagnosis was done by a licensed physician and surgeon holding an M.D. or D.O. degree or state licensed physician assistant or nurse practitioner, acting under the review or supervision of a physician and surgeon pursuant to standardized procedures or protocols within their lawfully authorized scope of practice, and that diagnosis is confirmed by testing or by a COVID-19 serologic test within 30 days of the date of the diagnosis. (c) The compensation that is awarded for injury pursuant to this section shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by this division.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's trial testimony was internally inconsistent and conflicted with medical records and reports, leading WCJ to find testimony not credible, but the presumption statute lessened the impact of this credibility finding.
From the decision · page 4On August 5, 2021, the WCJ issued the F&O, finding in pertinent part that the presumption of section 3212.86 applied but that defendant had successfully rebutted the presumption, and ordering that applicant take nothing by reason of her application. In the Opinion on Decision, the WCJ observed that applicant's trial testimony was internally inconsistent, and conflicted with the records from San Antonio Regional Hospital, and also with her reported medical history to Dr. Zlotolow. (August 3, 2021 Opinion on Decision, at pp. 7-9.) The WCJ noted specifically that applicant's testimony as to whether the married couple she worked for had tested positive for COVID-19 was inconsistent, as was applicant's testimony regarding her roommates' COVID status. (Ibid.) The WCJ assessed applicant's trial testimony as not credible, and further determined that the reporting of Dr. Zlotolow was not substantial evidence. (Id. at p. 9.)
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.