What the panel treated as outcome-determinative, and which side it favoured.
Applicant is a member of the class of employees covered by Labor Code section 3212.8
Favours Applicant prevailed
Triggers the presumption of industrial causation for blood-borne infectious diseases
From the decision · page 8Here, as in Azoulay, the plain language of section 3212.8 compels a finding that applicant
has sustained a presumptively compensable injury. There is no dispute that applicant is among the
classes of employees for whom the presumption of section 3212.8 is available, or that the infection
arose or manifested during applicant's employment. (Lab. Code § 3212.8, subd. (a), (b).) The
medical record establishes that applicant's sinus and lung infections were the result of exposure to
the pathogenic microorganism Citrobacter koseri. The QME confirms that Citrobacter koseri is
transmissible via the blood. (Ex. X2, Transcript of the Deposition of Mufaddal Dahodwala, M.D.,
dated February 26, 2021, at 36:7.) Applicant has thus sustained an infection as a result of a bacteria
that can be carried in the blood, with applicant's infectious disease caused by "exposure to
pathogenic microorganisms that are present in human blood that can cause disease in humans."
(Lab. Code § 3212.8(d).) Applicant has met the burden of proof necessary for the presumption of
industrial causation to attach, and the burden of proof now shifts to the defendant to affirmatively
Applicant developed a disease caused by the blood-borne pathogen Citrobacter koseri
Favours Applicant prevailed
The pathogen is transmissible via blood, meeting the statutory definition for the presumption
From the decision · page 8Here, as in Azoulay, the plain language of section 3212.8 compels a finding that applicant
has sustained a presumptively compensable injury. There is no dispute that applicant is among the
classes of employees for whom the presumption of section 3212.8 is available, or that the infection
arose or manifested during applicant's employment. (Lab. Code § 3212.8, subd. (a), (b).) The
medical record establishes that applicant's sinus and lung infections were the result of exposure to
the pathogenic microorganism Citrobacter koseri. The QME confirms that Citrobacter koseri is
transmissible via the blood. (Ex. X2, Transcript of the Deposition of Mufaddal Dahodwala, M.D.,
dated February 26, 2021, at 36:7.) Applicant has thus sustained an infection as a result of a bacteria
that can be carried in the blood, with applicant's infectious disease caused by "exposure to
pathogenic microorganisms that are present in human blood that can cause disease in humans."
(Lab. Code § 3212.8(d).) Applicant has met the burden of proof necessary for the presumption of
industrial causation to attach, and the burden of proof now shifts to the defendant to affirmatively
Defendant failed to rebut the presumption with affirmative evidence
Favours Applicant prevailed
Burden shifted to defendant to prove non-industrial causation, which was not met
From the decision · page 9However, this argument misapprehends the nature of the operative presumption. The effect
of a presumption affecting the burden of proof is to impose upon the party against whom it operates
the burden of proof as to the nonexistence of the presumed fact. (Evid. Code, § 606; City of Long
Beach v. Workers' Compensation Appeals Bd. (Garcia), supra, 126 Cal.App.4th 298, 314.)
Accordingly, once the "facts giving rise to the presumption of industrial injury have been proven
at the outset, the burden of proof negating the presumption falls upon the employer." (Gillette v.
Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 312 [36 Cal.Comp.Cases 570].) It thus falls
to defendant to establish that applicant's blood-borne illness did not arise out of and in the course
of employment. Speculation that applicant could have acquired the infection outside of his work
activities does not meet the affirmative burden of proof required to controvert the presumption.
(Zipton v. Workers' Comp. Appeals Bd. (1990) 218 Cal.App.3d 980, 988, fn. 4 [55 Cal.Comp.Cases
78] ["[w]here facts are proven giving rise to a presumption under one of these statutes, the burden
of proof shifts to the party, against whom it operates, to prove the nonexistence of the presumed
fact, to wit, an industrial relationship"].)5