As we continue to struggle through the COVID-19 pandemic, there may be light at the end of the tunnel, as California continues with its plan for distribution and administration of approved COVID-19 vaccines.
As with all vaccines, there are valid concerns that administration of the shots may have unintended consequences, including allergic reactions. As a result, questions have arisen as to the compensability of sequelae from the shots given in connection with employment.
The rule is well-settled that injuries caused by vaccination are compensable, where an employee submits to a vaccination at the direction of the employer, or for the employer’s benefit. A canvass of prior cases relating to vaccinations for other diseases is useful in evaluating the employer’s potential exposure.
In Roberts v. U.S.O. Camp Shows, Inc., applicant was a professional musician employed to perform services for his employer as a musician. The employer required applicant to undergo various vaccinations for immunization against certain diseases. The applicant contracted encephalitis as a direct consequence of the vaccinations provided by physicians designated and paid for by the employer. The trial court held that applicant’s injuries were compensable. The Court of Appeals agreed, and commented that it had been held in every American jurisdiction that incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or benefit of the employer.
In Roberts, the employer required applicant to undergo vaccinations. In those situations where the vaccine is received by an employee on a voluntary basis, the same principle may apply to find compensability.
The case of Integrated Data Company v. WCAB (Small) is instructive on this issue. In Small, the employer held a health fair on their premises. During the fair, three health plan organizations provided information to allow employees to enroll in an employer sponsored health plan. Prior to the fair, the employer also notified their employees that chiropractic treatment, flu shots, and blood pressure checks would be available. The applicant re-enrolled with Maxicare and obtained a flu shot. Applicant had an adverse reaction to the flu shot and claimed her resulting injuries were industrial. At trial, the WCJ found applicant’s injuries were not compensable because they did not occur in the course of employment. The WCJ reasoned that the flu shot applicant received was voluntary rather than mandatory and therefore was not a reasonable expectation of employment. The WCAB reversed the WCJ’s decision, noting that an employee is deemed to be within the course of employment when she is performing an activity on the employer’s premises that the employer expressly or impliedly has permitted and is reasonably contemplated by employment.
Per the Small case discussed above, it is not enough to make the argument that a vaccine was obtained by an employee on a voluntary basis, and therefore any resulting injury should be found non-industrial. Each case must be analyzed to determine the employer’s involvement, and the direction from and benefit to the employer in securing the vaccine to determine whether the injury arose out of employment. If the vaccine is suggested, arranged, recommended, or encouraged by the employer, any resulting reaction (“injury”) to the vaccine is likely compensable as well.
Attempted expansion of the above holdings has not been successful. In the case of Burnell v. WCAB, involving injuries from a spinal tap, the WCAB found there was no direction or involvement of the employer in applicant obtaining medical treatment.
In Burnell, the applicant was employed as a deputy sheriff by County of San Bernardino Sheriff’s Department. While working in the San Bernardino jail maintaining custody of inmates, applicant became ill with flu-like symptoms which were initially diagnosed as meningitis. Applicant’s supervisor transported applicant to the emergency room where he was treated and discharged. Later that evening, applicant’s symptoms worsened and his wife took him to the hospital where a spinal tap was performed unsuccessfully, causing injury to applicant’s spine, back and leg. Applicant subsequently filed a workers’ compensation claim alleging injury to his internal system, back, spine and leg and the WCJ found injury AOE/COE. The WCJ found applicant sustained an injury AOE/COE. The WCAB granted reconsideration, and rescinded the WCJ’s finding of injury AOE/COE determining that Labor Code section 3212.9 presumption did not apply because applicant never developed meningitis. The WCAB then addressed the question of whether, absent application of the presumption, applicant’s spinal injury was compensable. The WCAB cited several cases in which non-occupational injuries were found to be compensable, including the above two cases, Roberts and Small. Applying those decisions to Burnell, the WCAB found that all the cited cases had a common thread of employer direction, requirement, or benefit. The WCAB distinguished the Burnell case, explaining that these factors were not present in Burnell as the applicant sought and obtained medical treatment independently of any work involvement. The WCAB further stated that the facts of the case did not supply sufficient employer contact or factors of employment involvement, connection or direction to find industrial injury and reversed the WCJ’s finding of industrial injury.
Another potential issue that may arise with the vaccine rollouts are third party claims and defendant’s right to credit under Labor Code section 3861. In Vilarino v. Chromatics, Inc., the WCAB reversed the WCJ’s decision and found that defendant was entitled to a full credit pursuant to Labor Code section 3861 in the amount of $415,000.00 towards its future workers’ compensation liability. The $415,000.00 fund resulted from settlement of the injured employee’s third party claim against the flu vaccine manufacturer. Previously in this case, an Amended Findings and Award found that applicant had sustained injury to his internal organs and central nervous system causing permanent total disability as a result of an influenza vaccination administered by At Home Health Services, who had been contacted by the employer to conduct a voluntary flu clinic on the employer’s premises.
Vilarino is another example where a vaccination was obtained by an employee on a “voluntary” basis and the adverse reaction to the vaccine causing injury was found compensable. So even if an injury is found compensable as a result from the COVID-19 vaccine, be aware of potential third party claims and credit rights to assist in mitigating claim exposure/recovery.
In conclusion, when an employee submits to a vaccination at the direction of the employer or for the benefit of the employer, any resulting injuries caused by the vaccination are compensable. While the employer may argue that the injury is non-compensable if obtained on a voluntary basis, if there are facts suggesting employer involvement, direction or benefit in having its employee undergo the vaccination, any resulting reaction (“injury”) to the vaccine is likely compensable as well. Under the Liberal Construction Rule, the Board, in addressing injury AOE/COE as a result of the above, will apply the rule in favor of the injured worker.