01 Aug 2016

California: What Does It Mean to Be “Blood Borne”?

An analysis of the infectious disease presumption

By Brad Wixen, Esq.

In Azoulay v. City of Orange, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel, reversing the WCJ, held that the applicant suffered a presumptively compensable injury AOE/COE in the form of blood-borne infectious disease while employed as a juvenile correction officer during the period 7/1/2001 through 6/11/2012. The agreed medical examiner, Dr. Green, testified that the applicant’s blood infection was caused by bacteria that traveled to the applicant’s bloodstream from ruptured diverticula (caused by non-industrial diverticulitis) in the applicant’s colon.

(Publisher’s Note: Citations link to lexis.com; bracketed cites to Lexis Advance.)

The WCAB concluded that (1) based upon Dr. Green’s description, the applicant’s illness was covered by the presumption of compensability in Labor Code § 3212.8 [LC 3212.8], defining “blood-borne infectious disease” as “a disease caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans,” (2) the statutory definition does not require that pathogenic organisms such as the bacteria present in this case originate in the blood or as a blood disease, (3) under Labor Code § 3212.8(a) and (d), the applicant’s illness falls within the definition of “injury” to which a presumption of industrial causation in Labor Code § 3212.8 applies because “part” of the applicant’s disease, i.e., the blood infection, “developed or manifested itself” during his employment, (4) the presumption in Labor Code § 3212.8 reflects the Legislature’s intent to protect certain safety personnel who have a higher exposure to members of public who are more likely to have communicable blood-borne pathogens, (5) the anti-attribution clause in Labor Code § 3212.8(c) precluded the WCAB from attributing the applicant’s blood-borne infectious disease to non-industrial diverticulitis, even though that was the source of the applicant’s injury, and (6) although Dr. Green concluded that the applicant did not suffer industrial injury because the onset of diverticular disease was a long-term degenerative problem and was not caused by an industrially-related condition, such as work-related constipation, Dr. Green’s reporting was insufficient to rebut the presumption where he defined “blood-borne infectious disease” more narrowly than mandated by Labor Code § 3212.8 by finding that the blood-borne infection must originate in the blood for the presumption to apply, and he did not address the issue of whether the diverticulitis was the sole cause of the blood-borne infectious disease.

Commentary:

What does it mean to be “blood borne”?

An analysis of the infectious disease presumption.

Mr. Azoulay, a juvenile correction officer, sustained an industrial injury to the elbow. Six days after surgery to correct the problem, he went to urgent care with severe abdominal pain. At that time, it was discovered he had developed diverticulitis leading to release of bowel contents into the abdomen (an extremely serious condition) which required lengthy hospitalization on multiple occasions. The parties went to an agreed medical examiner who convincingly argued based on a meticulous analysis of the data that there was really no connection between the elbow injury, the surgery, and the subsequent diverticulitis. He did explore numerous potential industrial connections, but showed from the records themselves that those potential industrial causes were not operative.

At that point, a very creative applicant’s attorney questioned the AME. The doctor explained that applicant’s bowel had ruptured causing a pathogen to get into the blood. The problem was long-standing in the making and pre-existing entirely.

Why was this testimony important? Because of Labor Code section 3212.8 which allows for a rebuttable presumption for “blood-borne infection diseases.” So the key question would be whether this rupture of the colon would satisfy the definition of “blood-borne.” The defense attorney and the AME did not think so. The doctor testified that a typical blood-borne pathogen would include blood to blood transmission such as AIDS and hepatitis. In this case, the infection originated in the colon and accordingly was not “blood-borne.” The WCJ honored the opinion of the AME and accordingly awarded applicant nothing for the results of the diverticulitis despite the presumption. Applicant’s attorney then took the issue up for Reconsideration.

The WCAB panel engages in a very interesting discussion about this presumption. Even having gone to law school, making sense of the language requires almost superhuman reasoning. The Labor Code starts out by providing a special presumption for those who work in selected law enforcement jobs when they contract a “blood-borne infectious disease.” Subsection (b)(1) states that in such cases, there shall be a presumption that it was related to employment which, however, may be rebuttable. However, then subsection (c) states that in no case shall causation be attributed to a pre-existing disease prior to that development or manifestation. Subsection (c) is referred to in legal parlance as an “anti-attribution clause.”

The court grapples with what this means. Their interpretation is that there is a presumption. That presumption is rebuttable. It may not be rebutted by evidence of a pre-existing disease. How exactly does one rebut the presumption? Here they cite Jackson v. W.C.A.B. (2005) 133 Cal. App. 4th 965 [70 Cal. Comp. Cases 1413], which explains the effects of anti-attribution clauses. The effect is to place the burden upon the employer to prove that some contemporaneous non-work-related event—for example, a victims strenuous recreational exertion—was the sole cause of the heart attack. In other words, for those of us who require a translation, defendants can only rebut such a presumption containing an anti-attribution clause with evidence that there was a single non industrial event which was the sole cause and a contemporaneous basis with the condition that developed.

Taking this understanding of the law, the court begins by noting what may not be obvious to most of us: “blood-borne” does not solely mean “originating in the blood”, or even “originating in a blood disease like hepatitis.” Subsection (d) of the presumption merely defines blood-borne infectious disease as a disease “caused by exposure to pathogenic microorganisms that are present in human blood” that “can cause disease in humans.” The original source of that infection need not be from blood. To prove the point, the Honorable members of the Panel turned to Merriam Webster’s online dictionary looking for the medical definition of blood-borne and found it as “carried” or “transmitted by the blood.”

In this particular case, the pathogen was carried and transmitted by blood. The disease was caused by exposure to organisms present in the blood. The fact that the disease process ultimately was attributed to long-standing pre-existing processes means that the anti-attribution clause prevents the presumption from being rebutted. Note that hypothetically even if some portion of the disease had been caused by a contemporaneous event, the presumption could still not be rebutted because there was some percentage of involvement in pre-existing disease processes.

Takeaway points for attorneys:

1. Pay attention to definitions. Look things up in medical dictionaries.

2. Do not be fazed when an AME attempts to interpret the law. The law is interpreted by lawyers and Judges primarily. If you get the testimony that you think proves the legal definition, do not worry about what the doctor’s interpretation of the law may be.

3. Do not be preoccupied with what “really” happened in the case of a presumption. Instead, be preoccupied with what information is admissible to rebut it.

4. Make sure you understand what it means for something to be a rebuttable presumption if it contains an anti-attribution clause. Understand that the application of such a rebuttable product presumption is very limited.

Editor’s Note: It remains to be seen if this case is appealed. Be sure to check the subsequent history of the case before you cite to it.

Read the Azoulay noteworthy panel decision.