AOE / COECase BriefFinding of Injury AOE/COE Must be Supported by Substantial Medical Evidence

March 10, 20160


(2015) 2015 Cal. Wrk. P.D. Lexis 444

Decedent was a dishwasher at defendant’s restaurant. In addition to his dishwasher duties, his job included cleaning the floors, bathrooms and taking out the trash. On March 8, 2012, decedent was found dead in the parking lot where he had gone to take a trashcan to the dumpster. According to the autopsy, the cause of death was hemorrhaging of the lungs due to tuberculosis and fungal infection. His parents filed a workers’ compensation claim for death benefits.

The parents obtained an internal medicine medical-legal evaluation from Dr. Zlotolow. In his report, the doctor acknowledged that the decedent had tuberculosis which was non-industrial. However, he noted that in taking out the trash, he “could have been exposed to a substantial amount of fumes and odors” which led to coughing, and which could have caused the hemorrhaging in the weakened lungs. In addition, lifting the heavy trash container “could” have caused the arteries in the lungs to bleed.

Following trial at which both Dr. Zlotolow’s report and that of the corner were admitted as evidence, the Workers’ Compensation Judge found the death arose out of and in the course of employment.

The defendants filed a Petition for Reconsideration.

The Board noted that for purposes of the causation requirement in workers’ compensation, it is sufficient if the connection between work and the injury is a contributory cause of the injury and this standard is no more stringent for death claims than for disability claims. However, just because the decedent died on the employer’s premises one cannot assume that work contributed to his death. Causation must be supported by substantial evidence.

Here, Dr. Zlotolow’s opinion that the hemorrhaging in the lungs “could” have been caused by exposure to fumes or odors and/or by lifting a heavy garbage container was based on surmise, speculation, conjecture or guess. Therefore, it was not substantial evidence. There was no evidence at trial that the decedent was exposed to a substantial amount of fumes or odors or that he had been performing heavy lifting at work.

Because the award was not based on substantial evidence, the Petition for Reconsideration was granted and the applicants were to take nothing on their claim.

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