AOE / COECase BriefHerpes/Epstein-Barr Virus is a “Blood-Borne Disease” Covered by Labor Code Section 3212.8

June 19, 20180

(2018) 2018 Cal. Wrk. Comp. PD LEXIS 35

Applicant worked as a correctional Officer for the State of California Department of Corrections and Rehabilitation.  He alleged numerous injuries including injury to the heart, atrial fibrillation, chronic fatigue, herpes, and Epstein-Barr virus.  All of the claims except for the heart were denied.

The applicant was evaluated by a QME who diagnosed chronic fatigue syndrome which he “suspects… relates to a chronic viral syndrome and deconditioning, neither of which is work-related.”  After receiving the report, the applicant’s attorney deposed the QME.  The questions related to the applicant’s lab results which were positive for both herpes simplex virus and Epstein-Barr virus.

The QME testified that the applicant had been exposed to the herpes virus and Epstein-Barr virus and that both were transmitted through the respiratory system, as well as through the blood.  He then issued a supplemental report in which he stated “absent the presumption, I would not consider that such exposure was industrial.  However, there is no basis by which to controvert a potentially work-related exposure for this correctional officer since 1990.  Accordingly, Mr. Fermin’s chronic fatigue must be considered industrial in accordance with the presumption.”

The matter was tried and the judge issued a Findings and Award which included all of the claimed body parts and found that applicant was entitled to the presumption under Labor Code Section 3212.8 for the herpes/Epstein-Barr virus.

Defendant filed a Petition for Reconsideration which was denied.  Defendant argued that the herpes/Epstein-Barr virus was not a blood-borne disease covered by Labor Code Section 3212.8.

The Commissioners reviewed Labor Code Section 3212.8 (which provides safety officers, including correctional officers, an AOE/COE presumption for blood-borne infectious diseases) as well as recent cases analyzing what constitutes a “blood-borne disease”.  The term “blood-borne” is not limited to diseases that “originate” in the blood, but also include those that are “carried or transmitted by the blood”.  County of Orange vs. WCAB (Azoulay) (2017) 82 CCC 378.

Because the QME credibly testified that the herpes virus and Epstein-Barr virus can be transmitted via blood, they are “blood-borne diseases” covered by the Labor Code Section 3212.8 presumption.

Written by Edward L. Hummer, Associate Attorney in Mullen & Filippi’s Santa Rosa office, June 2018.

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