What the panel ordered
Findings of Fact issued on September 10, 2021 rescinded; case returned to trial level for further proceedings.
Petition for Reconsideration granted; Findings of Fact of September 10, 2021 rescinded; case returned to trial level for further proceedings.
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/COERemandedleft leg · left foot
The record lacks evidence to establish the direct cause of the bacterial infection as industrial injury; the case is remanded for further development to determine if applicant's occupational duties increased risk of infection.
From the decision · page 8The alleged injury in this matter is a bacterial infection. The parties have litigated this case as if they were litigating a direct occupational disease. A direct occupational disease occurs where the injured worker's point of infection can be established through evidence. Here, no such evidence is in the record, and it does not appear that such evidence exists. As neither party can establish the direct cause of the bacterial infection, the appropriate legal standard in this case is whether the infection meets the causation threshold for nonoccupational disease per Latourette. (Ibid.) Where it is impossible to pinpoint the direct cause of an infection, we must determine whether applicant's occupational duties exposed applicant to an increased risk of acquiring the infection to that of the general public. (Ibid.) This question was not presented to any of the doctors. Accordingly, the record requires development.