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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
September 28, 2021