Ed: This series examines workers’ compensation questions common to multiple jurisdictions and offers a multi-state perspective to those issues. In this article we take an in-depth examination of the compensability of inoculation or needle stick injuries under the Texas Workers’ Compensation Act. Following the article, we offer perspective from other states as well.
We currently find ourselves on the cusp of flu season. Employees are missing time from work because of their own illness or their need to care for a family member who is ill. Well established Texas law holds that an employee who becomes ill as a result of the flu or a cold is generally not considered to have suffered a compensable injury under the Workers’ Compensation Act.
But what about employees whose illnesses flow from an employer-sponsored effort to prevent illness, such as an onsite flu shot? And as long as we are talking about needles, what about inoculation injuries of other kinds such as the widely anticipated COVID-19 vaccine, when they occur in the workplace?
Any analysis of the compensability of employer-sponsored needle injuries in Texas should begin with City of Austin v. Smith, 579 S.W.2d 84 (Tex. Civ. App.—Fort Worth 1979, no writ) – the swine flu case. The claimant in Smith was a municipal firefighter who suffered an adverse reaction to a “swine flu inoculation.” The ingredients for the preventative drug had been provided by the federal government and were administered by the city through its agents and employees.
While receipt of the inoculation was voluntary and Smith was at liberty to refuse it, there was evidence offered in the case that the City desired that he receive it for its own welfare (because it afforded greater assurance that Smith would be available to perform the duties of his employment). The record also showed that Smith desired to receive the inoculation for his individual protection. Smith received the inoculation while on duty for the City.
Smith filed a workers’ compensation claim after the manifestation of his adverse reaction to the flu shot. The City disputed the compensability of the claim, arguing that his illness did not originate in a risk or hazard of his employment as distinguished from a danger to the public at large. A jury found the claim to be compensable.
The Fort Worth Court of Appeals affirmed. The court reasoned:
Prior to the occasion when Smith was inoculated, his employer, City of Austin, established a city-wide priority program for the distribution of the swine flu vaccine, with a priority plan for inoculation of persons. The first priority group (after the aged and chronically ill) was a group of persons who, because of their occupations, would be critical to the community in the event of a swine flu epidemic. Included therein were the firemen of the City of Austin, one of whom was Smith.
It was the nature of Smith’s duties of employment which caused his job to be classified in the priority group mentioned. Had he not been in that group he would not have been authorized to have received the vaccine as early as October 19th, the date on which he did receive it. Smith received the shot while he was on duty, at a facility owned and operated by his employer, City of Austin. There is testimony from the Mayor of the City of Austin, Jeff Friedman. In substance, a part of that to which he testified was:
There was no direct mandate saying you will have everybody line up, but it was made very clear that they were to be taken over in City vehicles and given time off from their functions, although they were still on emergency call; if something came up, they would have to leave the line. And I think the inference is pretty clear . . . from working in City government for six years . . . that when it is told, you have to do it and that it was pretty clear they wanted to have them . . . that the supervisors wanted them to have them (the inoculations).
Citing a national treatise, the court embraced the rule that an “injury through inoculation should be covered ‘if there is a combination of strong urging by the employer and some element of mutual benefit . . . .’” Larson, Workmen’s Compensation Law s 27.32 (1978), “Inoculations and employment health tests”.
Arguably then, absent a combination of strong urging by the employer and some element of mutual benefit, an inoculation injury will not be compensable under the Texas Act. This can occur when an employer sponsors or otherwise supports another type of needle use – an onsite blood drive. Such a claim was discussed in Texas Division of Workers’ Compensation Appeals Panel Decision No. 93212, Decided April 26, 1993, [1993 WL 141812 (Tex.Work.Comp.Com.)].
In Texas Division of Workers’ Compensation Appeals Panel Decision No. 93212, the claimant alleged that she sustained a compensable injury during the activity of donating blood on the employer’s premises while participating in an employer-supported blood drive. The manager of employee relations for the employer testified that the employer’s support was for the convenience of the employees and as a service to the community and also in order for the company to be seen as a good corporate citizen. Employees were not required to give blood and did not get any special treatment. Only 10 to 15 percent of the employees participated.
The manager also testified that the employer sponsors or makes available such other things as Toastmasters and Girl Scout activities, “any number of those types of activities to help out the employees personally.” He also indicated on cross-examination that the company generally desired to be seen as doing beneficial things, be a pillar of the community and that, in general, corporate image is important in advertising and business. He indicated that the employer’s business was in natural gas and the transportation of it to their customers who were utilities on the east coast. The employer does not have individuals as customers.
The appeals panel reversed the hearing officer’s decision that the claim was compensable, and rendered a decision that the injury was not compensable. The appeals panel wrote:
While the manager of employee relations acknowledged that the employer had an interest in being a good corporate citizen and benefactor to the community, it is clear this case did not involve a situation of good will toward a customer or an emergency type incident as in Thomas, supra. Indeed, the evidence shows that the employer’s customers were utilities on the East coast and not in the area where the blood drive occurred. We view the situation here as most directly involving a “public service activity” as discussed in Larson, The Law of Workmen’s Compensation, Volume 1A, 1992, § 27.34, page 5-418. Larson states “acts that are nothing more than the discharge of a person’s duties as good citizens or members of the community are not within the course of employment, even if they take place on the employment premises and may have been requested by the employer.” Cited, among other cases, by Larson on this issue is a Nebraska case (Mauser v. Douglas & Lomason Co., 192 Neb. 421, 222 N.W.2d 119 (1974)) involving an employee donating blood to the Red Cross, which in Larson’s summary involved a claimant, a punch press operator, for an employer who posted a notice stating that those employees who wished to donate blood would be excused for an hour of work but still would be paid, who was injured as a result of complications arising out of his donation of blood. Larson indicates the court denied benefits holding that participation in the program was a civic duty and that the employer gained no benefit because of the employee’s participation and had no control over the operation. A later case cited by Larson in this area, Belnap v. Boeing Co., 64 Wash. App. 212, 823 P2d 528 (1992), involved an employee fatally injured in returning to the job site from jury duty (employer paid full salary while the employee performed jury duty), where the court affirmed the denial of benefits notwithstanding the possibility that the employer’s corporate image was enhanced as a result of its leave-with-pay policy.
We conclude that the evidence in this case fails to meet the requirements of the definition of course and scope under Article 8308-1.03(12) that the claimant’s activity on June 18th constituted her being engaged in or about the furtherance of the affairs or business of the employer. Her activity falls more directly in line with the legal authority that indicates a denial of benefits when an injury is sustained while engaged in public service activities. We believe such analysis applies in this case. Not only do we conclude that any tangible benefits to the employer from the claimant’s activity is much too attenuated under the circumstances present, there is evidence in the claimant’s own testimony that she was acting on her own, as she had on at least 18 previous occasion, in the nature of Good Samaritanship. The evidence clearly indicates that she did not act to assist any customer or business associate or to enhance any business interest of the employer. Therefore, we reverse the hearing officer’s decision that the claimant’s activities on June 18th were in furtherance of the employer’s business or affairs and that she therefore sustained a compensable injury. We render a new decision that the claimant did not sustain a compensable injury while in the course and scope of her employment. Accordingly, no benefits under the 1989 Act are awarded.
For needle injuries occurring as the result of employer-sponsored events, the question of compensability in Texas seems to depend upon whether there exists a combination of strong urging by the employer and some element of benefit to both the employee and the employer.
If you have questions about this issue in Texas, please contact Bobby Stokes at RDS@fol.com or at (512) 435-2150.
Multistate Survey of Inoculation or Needle Stick Injuries
Alabama: The rules regarding compensability of inoculation or needle injuries in our state are that if the employer requires the employee to undergo the inoculation or participate in a blood drive, injuries sustained while engaged in these mandatory activities will be compensable. On the other hand, if the activity is not required, and is instead purely voluntary on the part of the employee, compensability will be found if there is a direct benefit to the business of the employer as the result of the employee engaging in that voluntary activity. If you have questions about this issue in Alabama, please contact Stephen Christie or Kyle Kinney at schristie@mk-law.com or kkinney@mck-law.com or at (205) 326-0000.
California: The rules regarding compensability of inoculation or needle injuries in California still apply the AOE/COE analysis. However, in Maher v. Worker’s Compensation Appeals Bd. the California Supreme Court provided clarification on the issue and found that if the medical treatment was required by the employer, the injury and/or complications from inoculation/treatment are industrial. LC 3208.5 further clarifies that any “injury” arising from preventative care provided to healthcare workers is compensable under the worker’s compensation system. If you have questions about this issue in California, please contact Emily Edwards at ece@manningllp.com or at (213) 624-6900.
Illinois: The rules regarding compensability of inoculation or needle injuries in our state depend upon the circumstances by which they occur. If at-work inoculation is explicitly required or incidentally expected by an employer in furtherance of an employee’s work duties, or if the employee has a statutory or common law duty to be inoculated at work, the inoculation constitutes a compensable accident. Notwithstanding a compensable accident, as always, determine whether any viable defenses exist before accepting. If you have questions about this issue in Illinois, please contact Rich Lenkov at rlenkov@bdlfirm.com or at (312) 327-0032.
Indiana: The rule regarding compensability of inoculation or needle injuries in our state is that the employee has to prove: 1) personal injury or death; 2) by accident; 3) arising out of the employment; and 4) in the course of employment. The causal relationship is established when a reasonably prudent person considers an injury incidental to employment at the time of entering into it or when the facts indicate a connection between the condition under which the employee works and the injury. If the employee has a choice, then it would likely not be compensable under Indiana. However, the PREP Act may provide liability immunity not only for manufacturers and distributers, but program planners as well, including private sector employers, who plan, administer, supervise or distribute a countermeasure. If you have questions about this issue in Indiana, please contact Kirsten Kaiser Kus at kkaiser@bdlfirm.com or at (219) 488-2591.
Louisiana: The rules regarding compensability of inoculation or needle injuries in our state are similar to Texas, and probably a bit more liberal towards compensability. When an employee is stuck by a needle during the course and scope of employment, this is treated as a compensable accident. If the employer encouraged inoculation for business purposes, this would also be covered. If you have questions about this issue in Louisiana, please contact Jeffrey Napolitano, jnapolitano@wcdefense.com at (504) 831-7270.
Mississippi: The rules regarding compensability of inoculation or needle injuries in our state are that these claims can be compensable. Each case is reviewed on its own merits as no formal rules or guidelines exist providing specific direction. However, where the injury occurs as the result of activities designed to benefit the employer, compensability will be found. If you have questions about this issue in Mississippi, please contact Jim Anderson at janderson@acblaw.com or at (601) 500-7477.
New York: The rules regarding compensability of inoculation or needle injuries in our state hinge on the purpose of the vaccination and whether there is a benefit to the employer, though the facts of each situation are within the discretion of the Worker’s Compensation Board. Needle injuries or adverse reactions to the vaccine have been found compensable where the vaccination was required or sponsored by the employer, though if the employee also receives compensation from the national Vaccine Injury Compensation Program or national Countermeasures Injury Compensation Fund, there is no offset to the employer/carrier. If you have questions about this issue in New York, please contact Marguerite L. Jonak at mlj@manningllp.com or at (646) 473-5609.
North Carolina: For inoculation or needle injuries to be compensable, the claimant bears the burden of proving the following three necessary elements by the preponderance of the evidence: (1) the injury must be the result of an “accident;” (2) the injury must arise out of the employment; and (3) the injury must have been sustained in the course of employment. An accident is more than the mere carrying out of the claimant’s usual and customary duties in the usual way. Rather, it involves the interruption of the work routine and the introduction of unusual conditions likely to result in unexpected consequences. If you have questions about this issue in North Carolina, please contact Jennifer Morris Jones at jjones@cshlaw.com or (919) 863-8846.
Oklahoma: This claim is not compensable in the State of Oklahoma. There is a long history of federal preemption in this area. Most recently the PREP Act provided immunity for any entity involved in the design, manufacture, distribution or administration of a COVID vaccine as well. If you have questions about this issue in Oklahoma, please contact Leah Keele at lkeele@law-lsl.com or at (918) 970-2000.
South Carolina: The rule regarding compensability of inoculation or needle injuries in our state is that it will be compensable if: (1) the vaccination or inoculation is submitted to pursuant to the direction or for the benefit of the employer, or (2) if the vaccination or inoculation was administered for the mutual benefit of the employer and employee. See Lee v. Wentworth Mfg. Co. 240 S.C. 165, 125 S.E.2d 7 (1962); Portee v. S.C. State Hosp., 234 S.C. 50, 106 S.E.2d 670 (1959). Specifically, if an employee voluntarily avails himself of a vaccination or inoculation for his or her own personal comfort, then the incapacity caused by illness from the vaccination or inoculation would not arise out of employment. However, if there is some mutual benefit to both the employer and employee by the administration of the vaccination or inoculation, then the incapacity resulting from such vaccination or inoculation will be found compensable. If you have questions about this issue in South Carolina, please contact Regan Cobb at rcobb@hplplaw.com or at (843) 277-0944.
Tennessee: The rules regarding compensability of inoculation or needle injuries in Tennessee are basically untested. The most significant case to arise regarding this issue concerned a nurse who suffered a needle stick when she was putting a spent needle in a bio hazard dispenser. She filed a claim stating she feared she had been exposed to AIDS and had developed a psychological injury as a result. Ultimately, the Supreme Court of Tennessee opined that the nurse failed to prove her claim because she could not establish that she had actually been exposed to a needle tainted with AIDS. Presently, there are no dispositive rules concerning workers comp cases and inoculation in Tennessee. The general rule is that the claimant must prove that the inoculation or needle injury was by 50.1% within the course and scope of the employee’s employment. If you have questions about this issue in Tennessee, please contact John Barringer at Jbarringer@Manierherod.com or at (615-742-9345).
This article is a publication of the Workers’ Compensation Defense Institute (WCDI). WCDI is an alliance of leading U.S. law firms that dedicates considerable experience to the representation of employers and carriers in the area of workers’ compensation. The members of WCDI serve the workers’ compensation community with a focus on providing quality and cost-effective legal services designed to facilitate the prompt and efficient resolution of claims.
WCDI is available throughout the year for complimentary, multi-state continuing education programs and presents a multi-state workers’ compensation seminar annually at the Workers’ Compensation Institute (WCI) Conference held in Orlando, Florida. The 2021 conference is scheduled for December 12-15. For more information or to register, visit wci360.com.
For more information about WCDI, or to contact an attorney from your state, visit wcdefenseinstitute.com.
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