ADJ13173690 · February 7, 2023

Applicant is a member of the class covered by Labor Code section 3212.8 and developed a disease caused by a blood-borne pathogen, Citrobacter koseri, which is transmissible via blood, triggering the presumption of industrial causation. Defendant failed to rebut the presumption with affirmative evidence, so the injury is found industrial.

From the decision · page 5The parties proceeded to trial on June 8, 2021, framing issues of injury AOE/COE, the date of injury, and the applicability of the presumption of section 3212.8. The WCJ issued the F&A on June 29, 2021, finding in pertinent part that applicant sustained the burden of proof to establish injury during the period December 18, 2019 through January 9, 2020, and that applicant's injury was presumed to arise out of and in the course of employment pursuant to Labor Code section 3212.8. (F&A, Findings of Fact, Nos. 1 and 2.)

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

Diagnosed acute sinusitis with Citrobacter koseri bacteria; found applicant permanent and stationary; causation difficult to assess but infection likely started during employment-related trip; bacteria transmissible via blood; infection likely continuous from sinuses to lungs.

The QME's opinion supports the finding of industrial injury under Labor Code section 3212.8, confirming the infection was caused by a blood-borne pathogen and likely related to employment exposure.

From the decision · page 3QME Mufaddal Dahodwala, M.D. evaluated applicant on November 13, 2020, and

Labor Code section 3212.8

Presumption of industrial causation under Labor Code section 3212.8 for blood-borne infectious diseases in specified public safety employees

Applied to find applicant's infection industrial due to blood-borne pathogen Citrobacter koseri and employment exposure

From the decision · page 6Labor Code sections 3212 through 3213 contain a series of statutory presumptions regarding the industrial nature of various injuries applicable to certain public safety officers. "These presumptions provide that when specified public employees develop or manifest particular injuries or illnesses, during their employment or within specified periods thereafter, the injury or illness is presumed to arise out of and in the course of their employment." (City of Long Beach v. Workers' Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 310-311 [70 Cal.Comp.Cases 109].) Their purpose is to provide additional compensation benefits to employees who provide vital and hazardous services by easing their burden of proof of industrial causation. (Ibid.)

Applicant's trial testimony found fully credible by WCJ despite defendant's challenge

From the decision · page 6In his Report, the WCJ notes applicant's testimony at trial was fully credible, and that applicant's reticence to discuss the specific details of an ongoing criminal investigation (e.g. the contents of the suspect's travel bag) with his treating physicians to be both reasonable and reflective of professional standards. (Report, at p. 3.) The report observes that the most likely scenario for exposure to the infectious bacteria was applicant's work activities. (Id. at p. 4.) Accordingly, the WCJ found that applicant met the burden of proving injury AOE/COE.