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Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions.
Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed what conditions may qualify as a “blood-borne infectious disease” so as to qualify for the presumption of compensability provided for by Labor Code Section 3212.8. The dispute centers around not only the language provided for under Section 3212.8 but also the language contained in California Code of Regulations, title 8, Section 5193(b) which specifically identify several diseases that not only are transmitted by blood but also originate in the blood (i.e., methicillin-resistant Staphylococcus aureus (MRSA), HBV, HCV and HIV).
In Molar v. State of California Department of Corrections and Rehabilitation ADJ 9431933 the specific question was whether the herpes/Epstein-Barr virus fell under Labor Code Section 3212.8. In Molar, there was no dispute that a correctional officer qualified for the presumption, the only question was whether his particular medical condition did.
As the WCAB has done in other recent cases (County of Orange v. Workers’ Comp. Appeals Bd. (Azoulay) 82 Cal. Comp. Cases 378 (writ den.), the panel in Molar relied heavily on the Merriam-Webster online definition of the term “blood-borne”. Based on this broader definition of the term “blood-borne”, a definition that includes both those diseases that originate in the blood as well as those that can be carried or transmitted by blood, the panel refused to adopt the defendant’s more narrow definition of the term.
In conclusion, the recent WCAB panel decisions that have addressed the question of what constitutes a “blood-borne” disease for purposes of Labor Code Section 3212.8 make it clear that the WCAB will not adopt a narrow definition of the term “blood-borne”. Moreover, for the practitioner that is confronted with the question of what diseases may qualify as a “blood-borne” disease, an excellent place to start the analysis might be to carefully consider the Merriam-Webster’s online definition of the term.
Read the Molar noteworthy panel decision.
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