Missouri: Reaction to Flu Vaccine Is a "Comp" Injury

A health-care worker who had a severe reaction to a flu shot in 2005 could collect worker’s compensation benefits even though the shot was not mandatory and not an “accident” as a matter of law.  The employer did not require employees to have flu shots, but allowed employees to obtain them on the employer’s  property during their shift.    About ½ the employees participated and there was no evidence of any penalty for not participating.   The commission case is Doyle v Lakeland Regional Hospital, 2011 MOWCLR LEXIS 243 (Dec. 8, 2011).

The Commission in the temporary award concluded that the shot itself was not a compensable accident but the reaction to the shot was an accident and an “unexpected traumatic event.”   Claimant was a nurse, she never returned to work after 2005, and the employer paid no medical benefits.   The parties in the 2011 hearing sought a determination on the issue of accident and notice and deferred any decision on other benefits.

The Commission found that conditions of employment working at a juvenile psychiatric facility  exposed claimant to a greater likelihood of infection creating a nexus between employment and her development of  complications from the flu shot. Health care facilities had higher risks of infection.  The Commission did not decide whether the risk of adverse reaction was an equal hazard of members of the general public.    Claimant alleges she developed symptoms of transverse myelitis within about a week of her shot.   The case analyzes the mutual benefit to the employer reducing the risk of infection of patients by employees. Claimant was on the job  and the employer’s staff performed the injection. 

The case is factually similar to a pre-reform case of Lampkin v Harzfields, 407 S.W.2d 894 (Mo. 1966) in which the claimant’s reaction to a flu shot was regarded as an accidental injury when the employer instructed her to obtain a shot.  Lampkin affirmed a motion for summary judgment by the employer in a tort claim and the court concluded the reaction arose out of and in the course of employment.   In Lampkin the employer argued the claim belonged in comp.  The employer disputed accident and relied upon a commission case denying benefits when an auto worker had a shot paid for by his employer on his break and the shot was performed by the insurance company’s staff  and not directly by the employer’s staff.  The lesson from Doyle is employers who don’t make shots mandatory may  want to offer vouchers for shots at an off-site facility to avoid their fingerprints too close to the medical procedure itself  if anything goes wrong.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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