Take Nothing: MRSA Presumption Rebutted
Over the period of September 15 through December 14, 2011 I tried and prevailed on a very important California Workers’ Compensation case related to allegations pursuant to California Labor Code section 3212.8.
Summary of Facts
Applicant was hired by a County Probation Department as a Custodial Care Officer. In 2007 applicant was employed by the County as a Juvenile Correctional Officer II. The County position was only related to custodial work with the inmates and applicant did not conduct any work outside of the institution with the public.
Applicant’s job included transporting minors from their living area to either a dining facility or a school facility. Applicant also would take minors to and from the visiting area and would conduct pat downs as the minors were coming and going from that area. On June 1, 2007, while employed with the County applicant was diagnosed with possible Methicillin-Resistant Staphylococcus Aureus (MRSA).
Applicant was unaware of how he contracted MRSA and does not know where he was directly exposed to the MRSA. At the time applicant was first exposed, it was his doctor’s guess that applicant contracted the MRSA from work but there was no way to prove it. Applicant was unaware of any reporting of MRSA in his work environment and unaware of anyone whom he worked with that has MRSA.
Defense witness testimony proved that the only minors with MRSA at the relevant time periods were a male in G pod and male in J pod. Further testimony proved that a review of 181 separate daily work schedules from January 2007 through June 2007 reflected that the Applicant did not work a single shift in either G pod or J pod, the two pods where the MRSA positive minors were housed.
Defense testimony reflected that at the relevant times, applicant worked the entire time in a security shift in the Commitment facility, which was located on the opposite side of the detention facility where the two MRSA positive minors were housed. Defense testimony proved that, prior to applicant, no staff person has ever had a positive MRSA diagnosis.
Applicant, in connection with the claim, underwent Panel QME evaluation and the state appointed physician concluded that it is unlikely that the applicant suffered his illness on an industrial basis.
Applicant claimed he was entitled to a legal presumption of compensability pursuant to California Labor Code section 3212.8.
After a lengthy trial the defense prevailed and applicant took nothing. The Workers’ Compensation Appeals Board Administrative Law Judge concluded in a complete, well-reasoned and legally sound opinion that applicant was not entitled to the presumption in California Labor Code section 3212.8, could not carry his burden of proof that he was exposed to MRSA at work pursuant to Labor Code section 5705 and Faust v. City of San Diego (2003) 68 CCC 1822 and that the appropriate medical specialist concluded medically he did not sustain injury arising out of and during the course of employment.