The opinion
LILLIE, P. J.
I respectfully dissent and would affirm the Workers’ Compensation Appeals Board’s (Board) decision.
Applicant, of course, had the burden of proving by a preponderance of the evidence that his alleged psychiatric injury arose out of and in the course of his employment. (Lab. Code, §§ 3202.5, 3600, 5705; Wehr v. Workers’ Comp. Appeals Bd. (1985) 165 Cal.App.3d 188, 193 [ 211 Cal.Rptr. 321 ]; California State Polytechnic University v. Workers’ Comp. Appeals Bd. (1982) 127 Cal.App.3d 514 , 520 [ 179 Cal.Rptr. 605 ]; Cal. Workers’ Compensation Practice (Cont.Ed.Bar 1985) § 8.45, p. 316.) “ ‘Preponderance of the evidence’ means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.” (Lab. Code, § 3202.5; see Wehr v. Workers’ Comp. Appeals Bd., supra, 165 Cal.App.3d at pp. 193-194.)
It is well settled that to be compensable under Labor Code section 3600, an injury must both “arise out of and be in the course of employment.” (State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1982) 133 Cal.App.3d 643, 652 [ 184 Cal.Rptr. 111 ], original italics.) Generally, the phrase, “arise out of employment,” refers to a causal connection between the employment and the injury. (Ibid.)
In determining whether applicant met his burden of proving a causal connection between his employment and the psychiatric injury so as to establish that his injury arose out of the employment, the Board, as ultimate trier of fact, was empowered to rescind the WCJ’s decision upon concluding that applicant did not meet his burden of proof by a preponderance of the evi *51 dence. (Lab. Code, §§ 3202.5, 5906, 5907; Wehr v. Workers’ Comp. Appeals Bd., supra, 165 Cal.App.3d at p. 194 .)
Here, in correctly concluding that applicant did not meet his burden of proving industrial causation, the Board stated in its decision: “Applicant’s psychiatric problems are not industrial. The record is, to say the least, insufficient upon which to conclude that he contracted asbestos disease or any other physical ailment due to his work environment, and the workers’ compensation judge found no work-related physical problems. His psychiatric difficulties were precipitated not by any condition at work but by the diagnosis of asbestos disease (which may be incorrect) reached by his own evaluating physician. It has not been established that there was harmful exposure of any kind (physical or emotional) at applicant’s work.” (Original italics.)
The majority’s reliance on the Labor Code section 3202 rule of liberal construction in annulling the Board’s decision is misplaced. The Legislature has expressly provided that “[njothing contained in Section 3202 shall be construed as relieving a party from meeting the evidentiary burden of proof by a preponderance of the evidence.” (Lab. Code, § 3202.5.)
Petitioner’s application for review by the Supreme Court was denied December 31, 1985. Lucas, J., was of the opinion that the application should be granted.