VACCINE SIDE
EFFECTS COMPENSABILITY OVERVIEW.
Vaccines against COVID-19 have
arrived and are readily available for Kansans to receive, and the virus appears
to be morphing into multiple variants with no immediate end in sight. Many employed Kansans have procured and
received one or more doses of the COVID-19 vaccine on their own, unrelated to their
employment status or any employer vaccine sponsorship.
Kansas employers and employees routinely
experience common annual non-occupational virus generated illnesses that can result
in employees first experiencing symptoms while at work, such as common colds
and the flu. It is generally understood
that an employee experiencing cold and flu symptoms while at work does not automatically
present with a compensable work injury by accident, repetitive trauma, or
occupational disease claim. Some Kansas
employers will, each year, offer employer sponsored illness prevention opportunities
such as on premises opportunity to get a free flu shot. Does Kansas work comp law provide any
guidance on compensability of employee illnesses arising from employer
sponsored efforts to prevent illnesses?
This presentation analyzes the potential
key compensability issues of an adverse reaction to any of the COVID-19
vaccines when received by the employee in the context of employer sponsorship of
the vaccine needle jab. Employer
“sponsorship” is an intentionally vague and ambiguous term covering a wide spectrum
of possible fact situations from absolute employer mandate at one end, to
purely voluntary, but employer facilitated and loosely encouraged, at the other
end. Somewhere in the middle are the potential
fact situations where the employer does not explicitly mandate or require, but
strongly encourages the employee to get a COVID-19 vaccine jab.
LIKELY SMALL UNIVERSE
OF POTENTIAL CLAIMS.
The Centers for Disease Control (CDC)
publishes information regarding likely possible currently known COVID-19
vaccine inoculation “reactions” which can be found at:
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/expect/after.html#print
These typical
reactions can include:
► Arm pain, redness or swelling at
site of inoculation.
► General body chills, fever,
nausea, muscle pain, tiredness, headaches.
None of these short-term temporary vaccine
inoculation reactions are likely to form the basis of a litigated compensable Kansas
work comp claim.
In very rare cases, and these are
the ones that would most likely be the candidates for a possible Kansas work
comp claim, the CDC references possible severe or immediate allergic reactions
after vaccine inoculation. Additionally,
it must also be remembered that it is too early to rule out the possibility of
other rare but long-term COVID-19 vaccine inoculation adverse reactions which
could form the basis of future Kansas workers compensation claims.
ANALYSIS OF KEY KANSAS
ELEMENTS OF COMPENSABILITY OF AN ADVERSE COVID-19 VACCINE REACTION CLAIM.
A. Select a claim theory – Injury by
Accident, Injury by Repetitive Trauma,
or Occupational Disease.
An adverse reaction to a COVID-19 vaccine
needle stick inoculation could potentially, depending on the specific facts, fall
under any of the three available claim theories of injury by accident, injury
by repetitive trauma or occupational disease.
However, the most likely theory of claim to be used in an adverse needle
stick vaccine inoculation situation is injury by accident. K.S.A. 44-508(d) accidental injury elements
are likely to be met by a vaccine needle stick inoculation:
1. Sudden traumatic event.
2. Identifiable by time and place of occurrence.
3. Producing at the time symptoms of the
injury and occurring during
a single work shift.
Should the facts of the case support
that the claimant felt symptoms from the needle stick (including even slight
pain sensation from insertion of the needle in the arm) at the time of the
vaccine inoculation, but no real adverse symptoms appearing until a day or so
later, such facts might draw a defense claim that the needle stick inoculation
did not produce symptoms of the ultimate serious “injury” (resulting adverse
vaccine reaction) during a single work shift.
Such a defense claim that the real injury was the resulting delayed serious
adverse reaction symptoms, which did not first manifest on the actual date of
the needle stick, would likely be met with the following claimant
response. Claimant would assert that the
law does not require all injury symptoms to be manifest on the initial date of
accident. In Barber v. State of
Kansas, No. 1,067,643 (WCAB May 2014), the Appeals Board found claimant met
the element of compensable work accident even though not all resulting body
part symptoms arose on the first day. As
long as some initial injury symptoms appeared on the first day, that was held sufficient
to satisfy the statutory accident requirement of occurring on a single work
shift.
The other two claim theories of
injury by repetitive trauma and occupational disease are not automatically
excluded from possible compensability consideration and may be necessary for
claimant attorney to explore in the event there are unique facts relating to
nature of the afflictive vaccine reaction or potential lack of timely notice
facts which might pose compensability problems under the injury by accident
claim theory that would otherwise be overcome under the injury by repetitive
trauma or occupational disease theories.
B. Personal Injury.
The current definition of “injury”
under the act found at K.S.A. 44-508(f)(1) provides that injury means: “… any
lesion or change in the physical structure of the body, causing damage or harm
thereto…” Furthermore, the current act goes
on to clarify at 44-508(f)(2) what a compensable injury does not
include: “An injury is not compensable because work was a triggering or
precipitating factor. An injury is not compensable solely because it
aggravates, accelerates or exacerbates a preexisting condition or renders a
preexisting condition symptomatic.”
The Appeals Board has applied
pre-2011 reform law and previously found that a work-related needle stick caused
personal injury by accident resulting in Hepatitis C and awarded preliminary
hearing benefits. See Perrill v.
Wesley Medical Center, Docket No. 233,702 (WCAB Oct. 1998). There are several other Appeals Board Orders
denying compensability of work claimed needle stick injuries for other reasons: Smith v. Augusta Medical Complex, Inc., Docket
No. 214,080 (WCAB Nov. 1996), where the Appeals Board found specific accident
claims including a needle stick did not cause the claimed injuries of carpal
tunnel syndrome or ulnar nerve entrapment.
Eshghi v. St. Joseph Medical Center and Riverside Hospital, Docket
No. 204,375 (WCAB Aug. 2000), where the Appeals Board found the alleged needle
stick event was not the likely cause of the claimant’s Hepatitis C infection. Halverson v. St. Francis Hospital, Docket
No. 184,956 (WCAB March 1997), where the Appeals Board held claimant failed to
prove timely notice and timely written claim for compensation.
None of the above needle stick
Appeals Board decisions involved the post-2011 reform law provisions or the
current definition of “injury.” It is
anticipated that new law “injury” issues and defenses raised, if any, will most
likely center around what the post-2011 law language states are not a
compensable injury – a sole aggravation of a preexisting condition where the preexisting
condition is mere made symptomatic with the work being a triggering or
precipitating factor. Is an adverse
reaction to a COVID-19 vaccine inoculation solely an acceleration or
exacerbation of the body’s preexisting normal immune response? Defense counsel will likely consult with
medical experts to explore the best science and current medical understanding
of the anatomical lesion or damage alleged in a particular claimant’s adverse
reaction to a COVID-19 vaccine inoculation and whether the facts give rise to a
sole exacerbation and/or prevailing factor cause defense.
Thus, a serious and prolonged COVID-19
vaccine inoculation adverse reaction claim will likely be looked at, at
minimum, as a temporary needle stick reaction injury claim. In the absence of strong defense medical
causation evidence, the vaccine needle stick will likely be seen as causing the
claimed reaction injury even though the effects of the adverse reaction may not
fully arise immediately on the identified single work shift of the jab.
C. Arising Out Of (AOO) and In the
Course Of (ICO) Employment.
A Kansas employer is liable to pay
compensation to an employee where the employee incurs personal injury by
accident arising out of and in the course of employment. See K.S.A. 44-501b(b). K.S.A. 44-508(f)(2)(B) further provides that
an injury by accident shall be deemed to arise out of employment, and therefore
compensable, only if: (i) There is a causal connection between the conditions
under which the work is required to be performed and the resulting accident;
and (ii) the accident is the prevailing factor causing the injury, medical
condition, and resulting disability or impairment.
Whether an accident arises out of
and in the course of the worker’s employment depends upon the facts peculiar to
the particular case. Kindel v. Ferco
Rental, Inc., 258 Kan. 272, 278, 899 P.2d 1058 (1995). The two phrases arising "out of" and
"in the course of" employment, as used in the Kansas Workers
Compensation Act, have separate and distinct meanings; they are conjunctive,
and each condition must exist before compensation is allowable. The phrase "out of" employment
points to the cause or origin of the accident and requires some causal
connection between the accidental injury and the employment. An injury arises "out of" employment
when there is apparent to the rational mind, upon consideration of all the
circumstances, a causal connection between the conditions under which the work
is required to be performed and the resulting injury. Thus, an injury arises
"out of" employment if it arises out of the nature, conditions,
obligations, and incidents of the employment. The phrase "in the course
of" employment relates to the time, place, and circumstances under which the
accident occurred and means the injury happened while the worker was at work in
the employer’s service. Id. at
278.
The AOO and ICO issues will likely
play out as the key set of issues and defenses related to the compensability of
an adverse reaction to a COVID-19 vaccine inoculation in Kansas. Do the facts establish that the COVID-19
vaccine inoculation was sufficiently employer sponsored to render any resulting
illness therefrom as arising out of and in the course of employment?
In his seminal treatise on workers
compensation law, Professor Larson writes a chapter on “Acts Outside Regular
Duties” and within that chapter, addresses acts that benefit claimants
including “Inoculations and Employment Health Tests.” Larson, Workers’ Compensation Law, Section
27.03[2], p 26 (1995). In Larson’s
survey of workers compensation case law related to vaccine inoculations, Professor
Larson boils it down to the following:
“When
inoculation is occasioned by the particular conditions of employment, injury
resulting from inoculation should be deemed to have occurred in the course of
employment. If there is an element of
actual compulsion emanating from the employer, the work connection is beyond
question, as when the company requires the employee to submit to vaccination by
the company’s doctor as soon as the employee is hired, or during an epidemic
tells the worker that unless they are vaccinated they cannot work until the
epidemic is over.” Id.
Professor Larson’s treatise tacitly acknowledges
that some jurisdictions being more employer friendly, hold that injuries from
inoculation or medical tests are not compensable as arising out of and in the
course of employment if the compulsion for the vaccination or test comes from
state law or a government directive, or are undertaken by the employee on a purely
voluntary basis. Id., p. 28. For example, where an employee voluntarily
and beyond employer compulsion is injured during a hearing test done on the
employee’s own time, said injury is not arising out of and in the course of
employment. In this regard, Professor Larson highlights the Kansas appellate
court decision of Wilson v. Mercy Health Center, 28 Kan. App. 2d 410, 15
P.3d 853 (2000).
Claimant Wilson was a surgical nurse
whose hearing had deteriorated apparently unrelated to her occupation, but instead
related to previous illness and aging. Her
supervisor, at some point, suggested to her that her hearing troubles
interfered with her work and posed a safety risk to patients. Nurse Wilson visited an audiologist on her
own time to be fitted for hearing aids in both ears. In that medical evaluation process, nurse
Wilson’s right ear drum was ruptured.
The Kansas Court of Appeals affirmed the Appeals Board denial of
benefits to Wilson under the act because her injury did not arise out of or in
the course of employment. Id. at 411. Without much discussion, the Court of Appeals
concluded that her supervisor’s suggestion that her hearing loss was
interfering with her job and becoming a safety risk to her patients did not render
the need for hearing testing to be work related. The Court of Appeals did not find her employer’s
suggestion of a need for hearing testing to be a fact sufficient to trigger a
causal connection between her need for hearing aids and the conditions under
which her work was required to be performed.
Would the denial of compensability
under the arising out of and in the course of employment issue be
different than the outcome of the Wilson case above, if the facts
involved a claimed injury resulting from a vaccine inoculation where it is
alleged that the employer either mandated or strongly encouraged the employee
to get the vaccine inoculation?
Perhaps the compensability holding
in the Appeals Board preliminary hearing decision of Sauerwein v. Sedgwick
County Area Educational Services Interlocal COOP, Docket No. 233,967 (WCAB July
1999) foretells a different compensability outcome where a Kansas employer is
found to have either mandated or at least strongly encouraged an employee to
get the jab as a condition of their continued employment. Ms. Sauerwein worked as a paraprofessional with
preschool aged children with disabilities.
The job involved direct physical contact with the children including changing
diapers and wiping noses. During
orientation, Ms. Sauerwein was told the Hepatitis B vaccination was required under
her job classification because of the level of physical contact with the
children. Ms. Sauerwein received three
vaccine inoculations and subsequently experienced progressive and varied
symptom reactions to each of the three vaccine inoculations. Ms. Sauerwein’s doctor opined that the
inoculation side effects she experienced were probably caused by the Hepatitis
B vaccination.
Both the Administrative Law Judge (Hon.
Nelsonna Potts Barnes), and the Appeals Board, held for purposes of preliminary
hearing that Ms. Sauerwein’s adverse Hepatitis B vaccine inoculation reactions
were compensable as arising out of and in the course of her employment and
awarded medical treatment and TTD benefits.
The employer argued that compensability should be denied because the
vaccination inoculations were procured by Ms. Sauerwein voluntarily. The Appeals Board decision appears to
conclude her employment compelled her to get the jabs as a condition of her
employment.
The best answer we can glean at this
time to the Kansas compensability of COVID-19 vaccine inoculation injuries question,
posed in the title of this paper, is that the outcome of the arising out of
and in the course of employment issue likely depends on the particular
facts of any future claim concerning the level of employer compulsion or
mandate as a condition of employment provided to the trier of fact. Evidence of an explicit employer mandate or
strong encouragement to get the COVID-19 vaccine inoculation as a condition of
employment will likely result in a compensability finding assuming none of the
other arising out of and in the course of post-2011 reform law
defenses are found applicable (such as prevailing factor cause).
On the other end of the factual
spectrum, where compensability may be denied is the fact situation where
uncontroverted evidence establishes that the employer did not mandate the
COVID-19 jab, that the employee sought COVID-19 vaccine on their own time
unrelated to employment and for personal health reasons.
Factual grey areas that may cut in
favor of a compensability finding, if present, include the following:
► Employer
providing on-site COVID-19 vaccine inoculations, particularly if the jab is
administered by company nurse or another employee.
► Employers providing time off work and free
transportation to off- site clinics to
get the vaccine inoculation during a regular work shift.
► Other employer provided incentives to
get the jab including direct money
incentives or the imposition of employee benefit sanctions such as decreases sick leave pay if
unvaccinated employees lose time
from work due to a COVID-19 infection, but no such benefit decrease is invoked on employees who chose to
get the jab.
Kansas employers hoping to avoid Kansas
work comp liability for employee injuries or illness resulting from a COVID-19
vaccine inoculation that might be alleged as “merely suggested” or “at most loosely
encouraged” by the employer, will want to make clear to employees that any employer
suggestion of, or encouragement for, getting the COVID-19 vaccine inoculation
is not mandated as a condition of employment, is purely voluntary on the part
of the employee and is to be procured on the employee’s own personal time. There appears to be a very fine line between
the Wilson, supra, employer communication suggesting hearing aids because
the hearing troubles were interfering with Wilson’s work and posing a safety
risk to patients on the one hand (compensability denied), and on the other
hand, the Sauerwein, supra, facts of the employer allegedly telling Sauerwein
that the vaccine inoculations were “required” (compensability awarded).
Finally, for Kansas employers
mandating COVID-19 vaccines for employees in specific employments where the
government has issued requirements that all employees in those certain
designated employments must be vaccinated, defense counsel will likely assert
that the mandate is not employer generated, but is instead government mandated,
and therefore does not arise out of employment because the risk of
exposure was government imposed, not employer mandated. Larson, supra, at Section 27.03[2], p.
28. However, this defense argument would
most assuredly be met with intense factual scrutiny as to whether the employer
took other and independent actions with employees in other job positions not
subject to the government mandate to get vaccinated. Facts establishing that the employer either
mandated or strongly encouraged other employees not covered by any government
mandate to get the COVID-19 vaccination inoculation would likely undercut this “blame
the government” argument.
Kim R. Martens
MARTENS WORK COMP
LAW LLC
P.O. Box 16967
Wichita, KS 67216
(316) 461-0135
Kim@MartensWorkCompLaw.com
September
28, 2021
