Flu Shots for Employees: Don’t Hurry Through the Screening Process During Employer-Provided Inoculations

Flu Shots for Employees: Don’t Hurry Through the Screening Process During Employer-Provided Inoculations

California employer found not negligent in connection with employee’s negative reaction to flu vaccination. Workers’ compensation insurer was entitled to $414,000 credit from third-party recovery by injured employee again flu vaccination manufacturer.

Reversing a decision by a California Workers’ Compensation Judge (WCJ), a panel of the state’s Workers’ Compensation Appeals Board (WCAB) has found the defendant insurer (here, CIGA) entitled to a full credit, pursuant to Labor Code § 3861, in the amount of $415,000, towards its future workers’ compensation liability where an employee sustained total and permanent disability from a condition known as transverse myelitis caused by the employee’s adverse reaction to a flu shot received at a “Flu Prevention Clinic” held on the employer’s premises [Vilarino v. Chromatics, Inc., 2014 Cal. Wrk. Comp. P.D. LEXIS – (Appeals Board noteworthy panel decision) (Apr. 29, 2014)]. The $415,000 fund resulted from a settlement of the injured employee’s third-party claim against the flu vaccine manufacturer [see Vilarino v. Chromatics, Inc., 2010 Cal. Wrk. Comp. P.D. LEXIS 207 (lexis.com; Lexis Advance) (Appeals Board noteworthy panel decision)].

[Publisher’s Note: All cases cited below link to Lexis Advance.]

Following established California precedent, which reduces or eliminates the employer or insurer’s credit to the extent that the injury compensated by the third-party settlement was caused by the employer’s own negligence [see Roe v. Workmen’s Comp. Appeals Bd. (1974) 12 Cal.3d 884, 528 P.2d 771, 117 Cal. Rptr. 683, 39 Cal. Comp. Cases 791, as modified in Associated Construction & Engineering Co. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 829, 587 P.2d 684, 150 Cal. Rptr. 888, 43 Cal. Comp. Cases 1333], the WCJ found the employer negligent and, therefore, entitled to no credit, based on, inter alia, the employer’s non-delegable duty to provide a safe workplace. The WCJ reasoned that if an independent contractor, regardless of how carefully selected, is employed to perform some service, such as inoculations, the employer hiring the independent contractor is answerable for harm caused by the negligent failure of the contractor. The WCAB held, however, that the WCJ erred in disallowing the credit since the injured worker had proved no evidence on the part either of the contractor (the inoculation firm) or the employer.

Background

The employee worked as a truck driver for the employer. As it had done for several years, the employer arranged for a firm, At Home Health, to provide the 1999 trivalent influenza vaccine recommended by the Centers for Disease Control (CDC) as well as licensed personnel to administer the vaccine. The employer paid At Home Health $12 per vaccination and provided space on its premises for the clinic. Participation on the part of the employer’s workers was voluntary.

At Home Health provided a registered nurse to administer the flu shots. The nurse had more than 40 years’ experience at the time the shots were given. Her experience included working as a nursing instructor at a local college and being chief nurse of an emergency room.

Prior to vaccination, the nurse gave all those to receive shots a release form that contained a number of questions. One inquired if the person was allergic to egg products, to which the truck driver checked “no.” The release form also contained an extensive disclaimer which indicated, among other things, that “[a]s in the case with most drugs or vaccines, there is a possibility that allergic or more serious reactions, or even death, could occur with the flu shot.”

The truck driver signed the form and later testified that he had no egg allergy, that he had received the flu shot the previous year and had no ill effects other than pain in his arm for a day or two following the shot. He testified that he had an allergic reaction to a tetanus shot that he received when he was 18 or 19 years old, breaking out in hives. He testified that he was not asked about any earlier negative reactions to vaccinations other than the flu vaccine.

Three weeks after the inoculation, the truck driver experienced severe back pain and went to the emergency room. He was admitted to the hospital and eventually diagnosed with transverse myelitis. In an earlier proceeding, the WCAB found that the vaccination arose out of and in the course of the employment and that it was medically probable that the vaccination caused the truck driver’s injury and disability. A subsequent finding determined that the truck driver suffered permanent total disability as a result of the vaccination.

The WCAB’s Opinion and Decision After Reconsideration

The WCAB noted that the truck driver had the burden of proof to establish the employer was negligent and that if the employer was not negligent, the defendant insurer was entitled to the full credit. The WCAB indicated in relevant part that the WCJ and the truck driver had “misapplied a number of legal theories.” The WCAB found that the WCJ’s decision was based “on a clear mistake of fact,” that the WCJ wrote in his Opinion that the disclaimer materials did not mention that the flu vaccine was contraindicated for those who suffered an egg allergy but, in fact, the papers had such a warning in bold and large typeface print.

The WCAB agreed with the WCJ that the employer was under a general, nondelegable duty to provide a safe place for the truck driver to work. The WCJ was mistaken, however, as to the scope of that duty and the meaning of the nondelegability of the duty. While the WCJ stated that it was “well settled” that the hirer was responsible for the negligent acts of an independent contract, the general rule was actually “the exact opposite of the WCJ’s recitation.” According to the WCAB, the employer here had not delegated any nondelegable duty to At Home Health. The WCAB stated that At Home Health had been hired to conduct a vaccination clinic, not to maintain the employer’s physical plant or implement or manage its safety systems.

Moreover, the truck driver had presented no actual evidence regarding the proper standard of care or regarding whether the At Home Health nurse had breached that duty of care. Any negligence on At Home Health’s part was not of the type that would be obvious to lay persons. Without expert testimony establishing a breach of duty, the WCJ erred in finding the nurse and At Home Health were negligent.

Nor had the truck driver established the employer’s own negligence independent of any imputed negligence. The WCAB noted that the truck driver argued that the employer had been negligent in failing to make an independent investigation and determination regarding the safety of the flu vaccination program and that the truck driver’s sister, who had neither a background in science nor in computing, quickly found through an Internet search several articles linking transverse myelitis and the flu vaccine. The WCAB stated, however, that it would be “seriously remiss” if it were to find that public policy imposed a legal duty for a layperson to conduct his or her own Internet research rather than follow the advice of physicians and public health professionals. The WCAB took notice, for example, that the CDC recommended the flu vaccine.

The WCAB concluded that there was no evidence the employer had been negligent. The defendant insurer was, therefore, entitled to a full $415,000 credit towards its future workers’ compensation liability in the case.

General Rule: Inoculations, Like the One Received by the Truck Driver, Are Within the Course and Scope of the Employment

As indicated above, the WCAB had earlier determined the truck driver’s injuries were compensable, that the flu vaccination inoculation occurred within the course and scope of the employment. That finding is in keeping with the great majority of decisions around the nation [see Larson’s Workers’ Compensation Law, § 27.03]. If there is an element of actual compulsion, the work connection is beyond question [see, e.g., Sanders v. Children’s Aid Society, 238 A.D. 746, 265 N.Y.S. 698 (1933); Neudeck v. Ford Motor Co., 249 Mich. 690, 229 N.W. 438 (1930); Texas Employer Ins. Ass’n v. Mitchell, 27 S.W.2d 600 (Tex. Ct. App. 1930); Industrial Commission et al. v. Messinger, 116 Colo. 451, 181 P.2d 816 (1947)]. That the inoculation is voluntary, as was the case here, does not generally defeat compensability of injury claims associated with negative reactions to the vaccine. The more recent trend is to extend compensability to those situations in which the inoculation is not required but where there is nevertheless a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations [see e.g., E.I. DuPont de Nemours & Co. v. Faupel, 859 A.2d 1042 (Del. Super. 2004); Washington Hosp. Ctr. v. District of Columbia Dep’t of Emp. Servs., 821 A.2d 898 (D.C. App. 2003); Monette v. Manatee Mem’l Hosp., 579 So. 2d 195 (Fla. Dist. Ct. App. 1991)].

Don’t Hurry Through Screening Process During Employer-Provided Inoculations

Accordingly, the employer has a strong incentive to work with the nurse or physician’s assistant to assure that the employees don’t just scan over and sign the medical release forms. Rebecca Shafer, President of Amaxx Risk Solutions, Inc. stresses that those taking the shots should not be herded through like cattle. In Ms. Shafer’s recent book, Your Ultimate Guide to Mastering Workers’ Comp Costs, she advises:

"When getting information from employees that may be critical to their safety and health, such as drug interactions, or allergy to a flu shot or CAT Scan contrast dye, it is important to explain the reason for the question in a manner the importance of the question is understood. The question is to screen out those who could be at risk of serious complications or death. Clearly explain that the question and response is VERY IMPORTANT. Also, such inquiries must be put in context. For example, questions should be asked while the patient is seated in a formal setting and while patient is not distracted. The seriousness of drug interactions or allergies should not be downplayed, but must be clearly spelled out. Make sure to provide information in the employee's first language at a grade-level they can understand. Explain everything on the form, and make sure they are able to read and understand the information."

Ms. Shafer relates that too many employers have a “let’s get the shot and get back to work” attitude. The few minutes necessary to help ensure that the employee’s medical questionnaire has been accurately and fully completed may save the employer and/or its carrier from an expensive workers’ compensation claim.

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