Carlos Ivan Rodas worked as a dishwasher at Guido’s Restaurant. In 2012, Rodas took the trash from the restaurant to the dumpster located approximately 300 feet away from the restaurant. A patron later found Rodas unresponsive and bloodied in Guido’s parking lot. Rodas was pronounced dead at the scene by emergency personnel. The autopsy report concluded that Rodas’s death was caused by a hemorrhage from an invasive pulmonary aspergillosis as sequelae of treated cavitary tuberculosis. In lay terms he died from a pulmonary hemorrhage while taking out the garbage at work. Rodas’s arteries were prone to bleed because of lesions caused by tuberculosis.
Internist Ronald Zlotolow, M.D. opined that either coughing, brought about by refuse odors, or lifting the garbage caused the bleeding.
The WCJ concluded that Rodas sustained injury arising out of and occurring in the course of his employment that resulted in death. However, a split panel decision reversed and concluded that Dr. Zlotolow’s opinion was based on surmise, speculation, conjecture, or guess and therefore was not substantial evidence that Rodas’s work contributed to the cause of his pulmonary injury and death.
The Court of Appeal reversed, and based on the expert medical testimony of Dr. Zlotolow found that the injury that led to Rodas’s death arose out of and in the course of employment in the unpublished case of Rodas v WCAB.
In the context of this case, the Court noted that the question of what caused the intrathoracic pressure can be answered only by circumstantial evidence since direct evidence is obviously unavailable. “Circumstantial evidence is sufficient to support an award of the commission, and it may be based upon the reasonable inferences that arise from the reasonable probabilities flowing from the evidence; neither absolute certainty nor demonstration is required.” (Pacific Employers Ins. Co. v. Industrial Acci. Com. (1942) 19 Cal.2d 622, 629.)
Thus the Court concluded that In the case of death occurring at work, the difficulty in proving industrial causation is “no reason to deny an award if the evidence warrants it.” (Clemmens v. Workers’ Comp. Appeals Bd. (1968) 261 Cal.App.2d 1, 7.) All reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee. (Id. at p. 8.) This is consistent with the mandate that the workers’ compensation laws “shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” (Lab. Code, § 3202.)
The Court of Appeal did not discuss the application of labor code section 3202.5 which was added to the Labor Code in 1993 after Clemmens (and other early cases defining the application of “liberal construction”) were decided. In adoption section 3202.5 in 1993 the Legislature expressly provided that “[n]othing contained in Section 3202 shall be construed as relieving a party from meeting the evidentiary burden of proof by a preponderance of the evidence.” Section 3202.5 was at the time part of a legislative reform package resolving long standing concerns over various issues by all stakeholders. Employers had for decades voiced concern about courts using liberal construction to decide the outcome of litigation, and the legislature addressed this concern in 1993 by limiting the application of liberal construction to resolve evidentiary disputes by enacting 3202.5. An appellate decision after the adoption of 3202.5 that resolves an evidentiary dispute by citing 3202 alone, without at the same time citing 3202.5 and discussing and reconciling both statutes does not seem to afford employers the benefit of the legislative process that attempted to balance the rights of employers and employees in workers compensation litigation. When a court cites decisions applying liberal construction before 1993 without noting there was a change in the law makes it seem as though section 3202.5 was never adopted by the legislature and does not exist. Indeed the Court of Appeal cites here in Rodas the recent Supreme Court case of South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 as support for this decision. But even in South Coast Framing, the California Supreme Court in 2015 cites section 3202, but makes no mention of how that should be reconciled with section 3202.5.
The Rodas decision is just another of many examples of courts applying “liberal construction” to resolve a factual dispute without consideration of what happens after 1993 when section 3202.5 was adopted.