The talk of the town, as it were, is the Legislature’s passage of Senate Bill 1159, which codifies Gov. Gavin Newsom’s executive order and expands upon it for the purposes of COVID-19 presumptions. Though not law at the time of this post, it is anticipated that Newsom will soon sign SB 1159.

Gregory Grinberg

There is plenty in SB 1159 to tinker with and analyze, but I thought I’d pick one issue out to touch on in today’s blog post. SB 1159 creates a “disputable” presumption that contracting COVID-19 in certain circumstances is an industrial injury. So, what’s a disputable presumption?

California Evidence Code 600 defines a presumption as “an assumption of fact that the law requires to be made from another fact or group of facts.” It further defines that “a presumption is either conclusive or rebuttable” (Section 601). Well, if a presumption is either conclusive or rebuttable, then what’s a “disputable presumption?”

Various appellate opinions have used the terms “rebuttable” and “disputable” interchangeably. For example, DOC v. WCAB/Alexander held: 

“(1) any specified injury or illness which developed or manifested itself during the officer’s service was rebuttably ('disputably') presumed to have arisen out of and in the course of employment.”  

Likewise, California Horse Racing Board v. WCAB/Snezek held:

“Because Snezek was a police officer for a political subdivision, the WCJ ruled that the heart trouble presumption set forth in Section 3212 applied and was not rebutted.” 

Of course, Labor Code Section 3212, et seq., uses the same term, “disputable” presumption for compensability of certain conditions to peace officers.

Assuming SB 1159 is signed into law, we can expect litigation over COVID-19 causation to be fact-heavy, but there’s also likely to be some litigation about the meaning of key terms and the burden of proof.

Clearly, “disputable” doesn’t mean “conclusive.” But unless disputable and rebuttable are actually interchangeable, is the standard for disputable somewhere between conclusive and rebuttable? Certainly, the Legislature is aware of the term “rebuttable,” as it is used in various Labor Code sections throughout the code.

My expectation is that defendants will be required to provide something more than a preponderance to effectively dispute or rebut these disputable presumptions.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.