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August 2016

A recent WCAB panel decision ignores the AME and stands a statute on its head to add another burden to public entity workers’ compensation budgets. One can only hope that Azoulay v. City of Orange will be appealed and reversed. In this writer’s opinion, the Board gravely erred in the interpretation and application of Labor Code §3212.8.

Briefly stated, §3212.8 adds a public safety employees presumption of compensability for blood-borne diseases, i.e. a provision that “blood-borne infectious disease or methicillin-resistant Staphylococcus aureus skin infection so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment….” In theory, the presumption is rebuttable. However, §3212.8 further provides that the described “blood-born borne infectious disease … shall in no case be attributed to any disease or skin infection existing prior to that development or manifestation.”

The net effect creates an allegedly rebuttable presumption of compensability that cannot be rebutted by showing that the infection pre-existed the employment. This, of course, defies logic and arguably deprives the defendant employer of due process, but has been upheld in other contexts, such as the heart trouble presumption. It was on this heavily tilted stage that the Azoulay case played out.

Few facts were in dispute. The parties stipulated that the applicant’s employment was covered by §3212.8. The applicant had left elbow surgery for an admitted industrial injury. Approximately a week later, he had severe abdominal pain and was diagnosed with a rupture of diverticula that released bowel contents into the abdomen. As a result of this condition, there was significant medical treatment and disability. The agreed medical evaluator found no industrial causation for the diverticulitis. Moreover, the Board appears to have accepted his findings. The defense attorney established in the deposition of the AME that the non-industrial diverticulitis resulted in infection entering the bloodstream, rather than the other way around.

Rather than looking to the medical definition of a “blood-borne pathogen,” the Board considered only the definition in the statute itself. That definition reads:

For the purposes of this section, “blood-borne infectious disease” means a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans, including those pathogenic microorganisms defined as blood-borne pathogens by the Department of Industrial Relations.

In spite of the AME’s very clear explanation of the difference between an infection that started in the bowel and moved into the blood versus a “blood-borne” infection, such as hepatitis or HIV, the panel concluded that the statute did not mean to use the medical definition (infection originating in the blood) but included any infection “carried or transmitted by blood.” The Board’s determination on this issue seems to have rested on “Merriam-Webster’s online dictionary”.

Citing the 2005 Jackson case, the board held that it was defendant’s burden to establish that “some contemporaneous non-work-related event” was the sole cause of the infection.

The defendant could scarcely have anticipated that the WCAB panel would resort to a definition supplied by an online dictionary rather than that supplied by a medical professional. It would likewise be difficult to anticipate that the panel would turn the entire question of causation on its head, as it did in the penultimate paragraph, stating:

As explained by Dr. Green, applicant suffered a massive infection and need for emergency surgery as a consequence of the release of pathogens into his bloodstream, i.e. blood-borne pathogens, following the bursting of his infected diverticulum. We therefore conclude that applicant had a “blood-borne infectious disease” within the meaning of the statute, and that defendant failed to overcome the anti-attribution clause that provides that applicant's injury "shall in no case be attributed to any disease ... existing prior to that development or manifestation."

On appeal, however, I believe that it could be demonstrated that the WCAB panel made errors of both fact and law. There is a substantial body of medical literature defining the nature of a “blood-borne pathogen.” That body of literature supports the trial judge’s findings that an infection originating in the bowel and not caused by an industrial condition does not fall within the definition of “blood-borne pathogen.”

The legislative history of this statute is informative and should have been considered. As pointed out by the trial judge, the purpose of Labor Code §3212.8 is to recognize that certain types of employees, including public safety employees, have a greater risk of exposure to certain diseases in the workplace than the general public.

Having been involved in both the litigation of blood-borne pathogen cases and the development of statutory language addressing them, I feel qualified to give an historical perspective.

A seminal case is Rosas v. WCAB (1993). Mr. Rosas worked for the City of Stockton and his work exposed him to raw sewage. He contracted hepatitis B allegedly due to that exposure. The defendant’s argued the applicant had to prove that his work and nothing else caused his hepatitis. The WCJ and the WCAB agreed. The Court of Appeal held that the applicant’s burden of proving industrial causation to a reasonable medical probability “manifestly does not require the applicant to prove causation by scientific certainty.” It was also based on this reasoning that a later Court of Appeal found that a laboratory employee exposed to blood products did not have to prove a specific exposure that resulted in contracting HIV, having proven that the nature of his work put him at greater risk for such exposure than the general public. Federal Insurance v. Doe (1995).

Early efforts to establish a presumption of compensability for blood-borne pathogens were intended to protect healthcare workers. So far, however, there is no codified presumption for healthcare workers. This is true even though OSHA reporting requirements recognize the risk of work-related exposure to blood and body fluids and §5406.6 tacitly acknowledges that risk by extending the statute limitations for HIV-related death claims. Instead, the presumptions applicable to public safety employees were augmented to include blood-borne pathogens. That shift in focus did not change the nature of the occupational risk being addressed.

Once again, the trial judge was correct in stating that the DIR website states that blood-borne pathogens “include, but are not limited to, hepatitis B virus (HBV), hepatitis C virus (HCV) and human immunodeficiency virus (HIV).” From the given examples, it should be obvious that the DIR did not intend for the term to include pathogens existing in the bowel and only incidentally entering the bloodstream due to bowel rupture. The WCAB panel did not even pretend to believe that Mr. Azoulay was actually infected with the disease-causing organism in the course of his employment or in the course of the surgery to treat the injury to his elbow. Instead, the panel concluded that its reading of the statute required a decision that flies in the face of both logic and the evidence, not to mention the legislative intent.

Perhaps most importantly, the panel did not even apply the standard it articulated to him. In order to reach this decision, the Board had to ignore the “contemporaneous non-work-related event” that was the “sole cause” of the infection: the rupture of the bowel diverticula. The AME report is clear that this rupture caused bowel contents to enter the abdomen, and from the abdomen, to enter the bloodstream. The report is further clear that the rupture was not caused by any work-related event or illness.

I hope the defense will appeal this case. However, the panel has in any case given us a blueprint for defending similar claims in the future. Instead of expecting that the applicant will bear any part of the burden of proof, public entity defendants must be prepared to disprove every element of the applicant’s case.

by Patricia Hastings, Schmit Law Office


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