DuFour v. WCAB (City of Modesto)

Filed 8/9/07 DuFour v. WCAB (City of Modesto) CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. Rick Dietrich, James C. Cuneo, and Frank M. Brass, Commissioners. Terre A. Sadosky, Workers Compensation Administrative Law Judge.

Moorad, Clark & Stewart and Adam J. Stewart, for Petitioners.

No appearance by Respondent Workers Compensation Appeals Board.

Law Office of Joseph Barlupo, LLP and Joseph J. Barlupo, for Respondent City of Modesto.

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A surviving spouse petitions this court for a writ of review (Lab. Code,^[1] 5950; Cal. Rules of Court, rule 8.494) alleging the Workers Compensation Appeals Board (WCAB) failed to adopt a statutory presumption of compensability that a blood-borne infectious disease caused the death of her police officer husband. Given the lack of supportive medical evidence that her husband was in fact infected with such a disease, we must agree with the WCAB that the presumption does not apply.

BACKGROUND

Modesto Police Officer Michael DuFour (DuFour) passed away in his home on December 13, 2003, after having experienced two days of flu-like symptoms. DuFours widow (Petititoner)^[2]requested workers compensation survivor benefits, but the City of Modesto (Modesto) denied her claim and the parties therefore set a workers compensation hearing to determine whether DuFours death arose out of and occurred in the course of his employment. Petitioners claim specifically referred to a statutory presumption under section 3212.8 establishing a presumed correlation between a blood-borne infectious disease and police employment.

The parties submitted the matter to the WCJ based solely on the medical evidence. After conducting a physical examination and toxicology review, John W. Eisle, M.D., prepared an autopsy report on behalf of the Stanislaus County Coroner and concluded DuFour passed away from an undetermined natural disease. Mark A. Super, M.D., Sacramento County Coroners Chief Forensic Pathologist, reviewed Dr. Eisles report and concurred with his findings, expressly noting DuFours toxicology tests were negative except for evidence of cold medications.

Modestos evaluating physician, Matthew Duncan, M.D., also reviewed DeFours records and agreed with Dr. Eisles conclusion, similarly noting DuFours blood and viral cultures were negative. Dr. Duncan pondered that given DuFours flu symptoms, his death most likely was from an infectious origin, which then caused septicemia and then resulted in septic shock and vascular collapse.

Meanwhile, Robert Blau, M.D., reporting on behalf of Petitioner, originally agreed DuFours death was nonindustrial and most likely the result of an influenza-type viral infection, but he subsequently changed his opinion after learning of the statutory presumption under section 3212.8. In deposition testimony, Dr. Blau admitted there was not any evidence of a blood-borne pathogen in DuFours blood sample, but nevertheless concluded DuFour likely died from some type of a blood-borne infectious disease, broadly defined as any pathogenic microorganism present in human blood.

Dr. Duncan issued a subsequent report countering that there was not any pathological evidence of a viral or bacterial infection to support Dr. Blaus opinion. Dr. Blau responded that whether DuFour suffered from a viral or bacterial infection, the infectious organism still traveled through the blood stream and would thereby represent a blood-borne infection by clinical criteria.

In January 2007, the WCJ concluded the presumption under section 3212.8 did not apply and that DuFours death did not arise out of and occur in the course of his employment with Modesto. Referring to DuFours autopsy reports, the WCJ found insufficient evidence that DuFour was infected with a blood-borne infectious disease.

Petitioner filed a Petition for Reconsideration with the WCAB, claiming her husbands death was compensable because he must have died from some disease carried in the blood and Modesto failed to prove otherwise. In response, the WCJ again advised the WCAB that [t]here is no diagnosis of any type of blood borne infectious disease process and no blood borne pathogen was found at autopsy nor was there any evidence of any exposure to any blood borne pathogen.

The WCAB denied reconsideration and issued its own opinion on April 16, 2007. The WCAB found the suggestion DuFour died of a blood-borne infectious disease speculation, not evidence and noted Petitioner repeatedly mischaracterized the burden of proof by insisting the statutory presumption applies any time a police officer becomes ill from an unknown source.

DICUSSION

Petitioner challenges the WCAB refusal to apply the statutory presumption under section 3212.8. The presumption provides, in relevant part:

(a) In the case of members of a sheriffs office, of police or fire departments of cities, counties, cities and counties the term injury as used in this division, includes a blood-borne infectious disease when any part of the blood-borne infectious disease develops or manifests itself during a period while that person is in the service of that office, staff, division, department, or unit.

(b) The blood-borne infectious disease so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment or service. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.

(c) The blood-borne infectious disease so developing or manifesting itself in those cases shall in no case be attributed to any disease existing prior to that development or manifestation.

(d) 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 Gee v. Workers Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418 (Gee), this court addressed the applicability of the now extinct treating physicians presumption under former section 4062.9. We noted that [a] presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. (Gee, supra, at p. 1425, citing Evid. Code, 600, subd. (a).) Thus, a presumption becomes operative at trial when the basic facts giving rise to the presumption are established by the pleadings, by stipulation, by judicial notice, or by evidence. (Gee, supra, at p. 1425.)

In the present matter, Petitioner never established the underlying basic facts necessary to invoke the application of the section 3212.8 presumption -- that a blood-borne infectious disease developed or manifested itself while DuFour was employed as a Modesto police officer. As the party requesting application of the presumption, Petitioner carried the burden of proving by a preponderance of evidence the underlying presumption conditions. ( 3202.5, 5705.) Although Petitioner relies on Dr. Blauss medical opinion, his opinion itself must rest on relevant facts. (Zemke v. Workmens Comp. Appeals Bd. (1968) 68 Cal.2d 794, 798.) [T]he chief value of an experts testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based. (Escobedo v. Marshals (2005) 70 Cal.Comp.Cases 604, 621 [en banc], citing People v. Bassett (1968) 69 Cal.2d 122, 141, 144.) Dr. Blaus opinion here is not based on a medical finding that DuFour died from a blood-borne infectious disease. Instead, he formed his opinion on an absence of any other cause of death. None of the reviewing physicians, including Dr. Blau himself, found any evidence of a disease carried in DuFours blood that would give rise to the presumption of compensability.

We are inclined to agree with the WCAB that the Legislature intended the presumption under section 3212.8 to apply only to diseases that are transmitted via contact with blood, such as Hepatitis and AIDS, rather than so broadly as to include any organism that can travel within the bloodstream of its host. The record presented to this court, however, is not well developed on this point and the parties do not raise it as an issue. We therefore do not decide the ambit of what constitutes a blood-borne infectious disease. Here, there is simply insufficient evidence that DuFour carried any disease in his blood stream, let alone one caused by exposure to pathogenic microorganisms that are present in human blood that can cause disease in humans. ( 3212.8, subd. (d).) Accordingly, the WCAB properly declined to presume DuFours death arose out of and in the course of his employment.

Petitioner also argues apportionment under section 4663 does not apply in considering application of the blood-borne infectious disease presumption.^[3]   Apportionment is the process employed by the [WCAB] to segregate the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility. (Marsh v. Workers Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 911.) It is unclear why Petitioner raises the apportionment provision, as the WCAB already agreed with Petitioner stating in its opinion that section 4663 has no bearing on the instant case, that Apportionment is not involved, and that apportionment statutes do not affect the determination of the compensability of an industrial injury; they are simply not relevant to the issue of whether an injury arose out of and occurred in the course of employment. The contention appears an irrelevant relic of the same argument previously raised verbatim in her Petition for Reconsideration.

DISPOSITION

The Petition for Writ of Review, filed May 30, 2007, is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Hill, J.

^[1] Further statutory references are to the Labor Code.

^[2] WCAB records conflict as to whether DuFours surviving spouse is named Rebecca or Rachael. The application for adjudication form, signed by Rebecca DuFour, lists her name as Rebecca and their daughters name as Rachael. In the Opinion on Decision, however, the Workers Compensation Administrative Law Judge (WCJ) states the Minutes of Hearing and Summary of Evidence was incorrectly titled and should appropriately be titled Rachael DuFour (Applicant), Michael DeFour (Decedent). Yet the WCABs subsequent opinion and order denying reconsideration again lists Rebecca as DuFours widow and Rachael as their daughter. In their filings with this court, both parties nevertheless refer to DuFours widow as Rachael. We will simply refer to her as Petitioner.

We also note the Minutes of Hearing and Summary of Evidence referenced in the WCJs Opinion on Decision was not included with the Petition for Writ of Review as required under California Rules of Court, rule 8.494(a)(1)(B). Failure to include the required exhibits alone is grounds to deny the petition. (See 2 Hanna, California Workers Compensation Practice,  34.11[2][b], citing Shepherd v. Workers Comp. Appeals Bd. (1981) 46 Cal.Comp.Cases 366 [writ den.].)

^[3] Section 4663 provides that, In cases of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of disability due to the aggravation of such prior disease which is reasonably attributable to the injury.