ADJ19100202 · October 5, 2026

The Appeals Board found that the JC virus is carried in human blood and causes a disease meeting the statutory definition of blood-borne infectious disease under Labor Code section 3212.8; the defendant failed to rebut the presumption; therefore, the presumption applies and the injury is compensable as arising out of and in the course of employment.

From the decision · page 17Following our independent review of the record occasioned by applicant’s Petition, we are persuaded applicant has established the necessary evidence to trigger the blood-borne infectious disease presumption of section 3212.8 and that defendant has failed to controvert the presumption. Accordingly, we grant applicant’s Petition for Reconsideration, rescind the June 30, 2026 F&O, and substitute a new F&O that finds that applicant met her burden to show that the section 3212.8 blood-borne infectious disease presumption applies; that defendant failed to rebut the

Applicant was employed as a correctional officer covered by Penal Code section 830.5 during the period of February 7, 2007 through September 21, 2022.

Favours Applicant prevailed

This established eligibility for the blood-borne pathogen presumption under Labor Code section 3212.8.

From the decision · page 11(Lab. Code, § 3212.8(a) and (b)(1).) Therefore, for the presumption to apply under section 3212.8, applicant must establish that she is an individual: 1) “described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part of the Penal Code,” 2) who has a “blood-borne infectious disease,” 3) that “develops or manifests itself during a period while that person is in the service,” and 4) these facts are not “controverted by other evidence.” (Id.) Here then, the admittedly oversimplified question presented is: When a correctional officer carrying the dormant JC virus that is common throughout the general population is treated for a non-industrial medical condition with a medication that allows the JC virus to develop into PML, is the resulting injury presumed industrial? 1. As to the first requirement, it does not appear to be contested that applicant is a correctional officer who is covered by the section 3212.8 presumption.

The JC virus is carried in human blood and causes a disease meeting the statutory definition of blood-borne infectious disease under Labor Code section 3212.8.

Favours Applicant prevailed

This fact triggered the presumption of industrial injury for the applicant.

From the decision · page 17Following our independent review of the record occasioned by applicant’s Petition, we are persuaded applicant has established the necessary evidence to trigger the blood-borne infectious disease presumption of section 3212.8 and that defendant has failed to controvert the presumption. Accordingly, we grant applicant’s Petition for Reconsideration, rescind the June 30, 2026 F&O, and substitute a new F&O that finds that applicant met her burden to show that the section 3212.8 blood-borne infectious disease presumption applies; that defendant failed to rebut the

Defendant failed to provide substantial medical evidence to rebut the presumption that the JC virus was acquired non-industrially.

Favours Applicant prevailed

Failure to rebut the presumption resulted in the presumption applying in favor of the applicant.

From the decision · page 16This defendant has not done. For example, although PQME Dr. Franc states in deposition “it’s more likely than not that she was exposed to this virus before her first day of work,” he later contradicts himself by stating “exposure to this could be later in life and then there may be no outward sign of the infection.” (Exhibit FF, at p. 24, ln 16-18; p. 28, lns 8-10.) Similarly, although PQME Dr. Tirmizi states that the JC virus “is acquired in childhood” this statement directly follows the doctor acknowledging he is “unable to identify when the applicant contracted JCV.” (Exhibit AA, p. 2.) These are just two examples that illustrate how the medical opinions relied on to establish when applicant acquired the JV virus are not substantial evidence. Such opinions are “based on surmise, speculation, conjecture or guess.” (Hegglin, supra, at p. 169.) It is precisely because proving the cause of a blood borne pathogen is difficult that the Legislature made a policy decision to relieve an applicant from having to meet the burden of industrial causation. Here, defendant has not overcome the presumption.

Testified that JC virus is not known as a bloodborne pathogen but enters the brain through the bloodstream; unable to identify when applicant contracted the virus; deferred to trier of fact on legal definition.

Testimony acknowledged the virus travels through blood but did not conclusively rebut the presumption; opinion was considered but not found substantial to rebut.

From the decision · page 7It is therefore my opinion that JCV is not known to be a bloodborne pathogen. It likely does enter the brain through the blood-brain barrier; however, it is not acquired as a bloodborne infection. I am unable to identify when the applicant contracted JCV. However, as discussed above, it is acquired in childhood, possibly through respiratory inhalation.

Unable to provide definitive opinions on causation related to left-sided spastic hemiparalysis condition.

From the decision · page 3As found by the WCJ, applicant, while employed during the period of February 7, 2007 through September 21, 2022, as a correctional officer claims to have sustained injury arising out of and in the course of employment to the brain, neurologic system, bilateral lower and upper extremities, and exposure to JC Virus. On May 31, 2023, Panel Qualified Medical Evaluator (PQME) Jeffrey Lundeen, M.D., issued a report in orthopedics and concluded that he was “not able to provide any definitive opinions on causation as it relates to the left-sided spastic hemiparalysis condition.” (Exhibit GG, PQME Jeffrey Lundeen, M.D., May 31, 2023, p. 7.) On September 27, 2023, PQME Daniel Franc, M.D., Ph.D., issued a report in neurology and stated that progressive multifocal leukoencephalopathy (PML) “was present in September 2022 at the time of her traumatic fall. There is a possibility that PML contributed to her fall.” (Exhibit EE, PQME Daniel Franc, M.D., Ph.D., September 27, 2023, p. 3.) On April 5, 2024, the deposition of PQME Dr. Franc was taken.

Testified that JC virus must travel through the blood to infect the brain and that the virus was present during employment; supported application of blood-borne pathogen presumption.

Testimony supported statutory interpretation that JC virus is a blood-borne infectious disease under Labor Code section 3212.8.

From the decision · page 138, § 5193(b)(3).) Based on the language of the statute, it is clear that the Legislature provided an expansive definition for blood-borne infectious disease, and that therefore, section 3212.8 describes a virus carried by the blood that causes a disease. Here, when providing final opinions at deposition, PQME Dr. Franc stated during questioning: A. Yes, I mean essentially every virus that affects the brain has to get through the blood brain barrier, whether the virus initially enters the body through the respiratory tract or the GI tract or directly into the skin, there's really not a way to infect the central nervous system directly, and bypass the blood brain barrier, and so the expectation is that every virus, including JC virus, is going to have to find that same route.

Labor Code section 3212.8; Penal Code section 830.5

Blood-borne infectious disease presumption under Labor Code section 3212.8 applies to correctional officers as peace officers under Penal Code section 830.5.

The Appeals Board applied the statutory definition of blood-borne infectious disease and found the JC virus meets this definition, triggering the presumption of industrial injury.

From the decision · page 101426, emphasis in original.) We therefore initially review this matter to determine whether the presumption’s underlying conditions are established because, if so, we are bound to adopt the presumption of injury. Section 3212.8 provides as relevant here provides: (a) In the case of... individuals described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, whether those persons are volunteer, partly paid, or fully paid,... the term “injury” as used in this division, includes a blood-borne infectious disease... when any part of the blood-borne 2 Current section 3212.8 is effective until January 1, 2027, and has been reenacted effective January 1, 2027, in substantially the same form with only minor changes that are not relevant to the case before us.

Applicant's testimony and stipulation that she was employed as a correctional officer covered by Penal Code section 830.5 and Labor Code section 3212.8 presumption.

From the decision · page 11(Lab. Code, § 3212.8(a) and (b)(1).) Therefore, for the presumption to apply under section 3212.8, applicant must establish that she is an individual: 1) “described in Chapter 4.5 (commencing with Section 830) of Title 3 of Part of the Penal Code,” 2) who has a “blood-borne infectious disease,” 3) that “develops or manifests itself during a period while that person is in the service,” and 4) these facts are not “controverted by other evidence.” (Id.) Here then, the admittedly oversimplified question presented is: When a correctional officer carrying the dormant JC virus that is common throughout the general population is treated for a non-industrial medical condition with a medication that allows the JC virus to develop into PML, is the resulting injury presumed industrial? 1. As to the first requirement, it does not appear to be contested that applicant is a correctional officer who is covered by the section 3212.8 presumption.

Medical testimony that JC virus travels through the blood to infect the brain, supporting statutory interpretation of blood-borne infectious disease.

From the decision · page 138, § 5193(b)(3).) Based on the language of the statute, it is clear that the Legislature provided an expansive definition for blood-borne infectious disease, and that therefore, section 3212.8 describes a virus carried by the blood that causes a disease. Here, when providing final opinions at deposition, PQME Dr. Franc stated during questioning: A. Yes, I mean essentially every virus that affects the brain has to get through the blood brain barrier, whether the virus initially enters the body through the respiratory tract or the GI tract or directly into the skin, there's really not a way to infect the central nervous system directly, and bypass the blood brain barrier, and so the expectation is that every virus, including JC virus, is going to have to find that same route.