With all the talk about COVID19 vaccinations in the news, have you thought about how vaccinations in the workplace could result in workers’ compensation and occupational disease claims? The Illinois Workers’ Compensation Act has a section that deals directly with vaccinations in the workplace:

Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act. This paragraph added by this amendatory Act of the 93rd General Assembly is declarative of existing law and is not a new enactment. 820 ILCS 305/11.

The same verbiage exists in the Illinois Workers’ Occupational Diseases Act:

Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person’s employment or in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act. This paragraph added by this amendatory Act of the 93rd General Assembly is declarative of existing law and is not a new enactment. 820 ILCS 310/1(d).

I have only gone to hearing on one case that involved a vaccination. My client had received a flu shot while working as a medical coder for a hospital. She had previously worked as a general nurse for the same hospital, but had taken the coder job in order to have a more flexible schedule that would allow her to care for her school age children. It was the custom and practice at the hospital that employees would be informed when flu shots were available. She received the flu vaccine on September 28, 2018. At the time the shot was administered, she was not ill and was not exhibiting any flu like symptoms. She had no prior issues with her left shoulder or her left upper extremity prior to receiving the flu vaccine.

My client began noticing pain in her left shoulder. The pain grew progressively worse, causing her to seek treatment at the hospital’s urgent care center. The doctor at the urgent care center thought she might be experiencing a possible deep muscle infection secondary to the injection, and that she might be hypersensitive to the flu vaccine. She next saw an orthopedic surgeon, who diagnosed her with left shoulder pain and a possible rotator cuff injury. An MRI was performed on October 17, 2012, revealing mild supraspinatus and infraspinatus tendinosis along with mild fraying on the bursal side of the supraspinatus tendon and articular side of the infraspinatus tendon.

My client underwent physical therapy and cortisone injections but to no avail. Surgery was performed on February 21, 2013 consisting of a left shoulder arthroscopy with posterior labral repair, extensive debridement of the labrum and rotator cuff, and subacromial decompression. She continued to have problems, and eventually underwent an MR arthrogram that revealed suspicion for a recurrent posterior labral tear. After another course of physical therapy, an FCE was performed on August 25, 2016 that resulted in permanent restrictions.

I argued that Section 11 of the Act would apply, and that the vaccination should be deemed to have arisen out of and in the course of my client’s employment as a medical coder. The Respondent argued that Section 11 of the Act would not apply, because it was a bioterrorism centered law and would not apply to our case.

The arbitrator declined to address the argument about Section 11, but still found that my client sustained a work accident arising out of and in the course of employment. The arbitrator wrote that it was clear from the evidence that my client was working for the respondent, was heavily involved with patient contact, and was advised / directed to get the flu shot to further the health interest of the patients and her employer who is in the business of providing medical care. I should also note that the respondent’s Section 12 examining physician agreed that the injuries sustained by my client were causally related to the flu shot she received on September 28, 2018. The arbitrator awarded 15% loss of use of the person as a whole, along with payment of bills and temporary total disability benefits. The case subsequently settled while pending review by the Commission.

TAKEAWAYS

  1. You can prove up a vaccination related injury without having to resort to Section 11 of the Illinois Workers’ Compensation Act or Section 1(d) of the Illinois Workers’ Occupational Diseases Act.
  2. This one is my opinion, but I think that a straightforward reading of both the Workers’ Compensation Act and the Occupational Diseases Act makes it clear that any vaccination that is administered at the workplace arises out of and in the course of employment even if the vaccination is part of a voluntary inoculation program. As long as the employee is able to show that he or she is receiving the vaccination in connection with any governmental program or recommendation for the inoculation of workers in the employee’s occupation, geographical area, or other category that includes the injured employee, the injury will be deemed to arise out of and in the course of employment.
  3. Causal connection is still going to be an issue, but it appears based upon my particular case that physical injuries resulting from vaccinations are not that uncommon. The respondent’s Section 12 examining orthopedic surgeon found causal connection in this case.
  4. I haven’t found an Illinois appellate or Supreme Court case that addresses these sections to date. I suspect that will change once the coronavirus vaccine hits the market and workplaces in the coming months.

The decision I reference in this post is an Arbitrator’s decision. It is in line with other flu vaccine cases decided by the Commission. If you would like a copy of this decision, feel free to contact me through this blog, and I’ll email you a copy.