Workers' Compensation exposure in Massachusetts for injuries from reactions to the COVID-19 Vaccine:



WHEN IS A SHOT IN THE ARM
A KICK IN THE PANTS?

The consequences of COVID-19 forced the insurer to confront the contagion at the beginning and now the hopeful end. The initial instances of infection required an investigation into whether the “the hazard of contracting such diseases by an employee is inherent in the employment.” The analysis is “a question of fact whether the likelihood of infection or contagion is so essentially characteristic of the employment as to warrant a finding that the danger is inherent therein.” Perron's Case, 325 Mass. 6, 8-9 (1949). (A nurse contracted tuberculosis in a hospital setting.)
 
The hopeful end of Covid facilitated by the increasing availability of various vaccines raises complex questions of compensability if an employee experiences a bad or permanent reaction to the vaccine causing a personal injury or aggravates a pre-existing condition.

One case which addressed this issue was "Hicks Case" in 2005. Carolyn Hicks’ loss of sight as a result of her flu shot was a case of first impression in Massachusetts. The employee’s supporting medical evidence on causation was found reliable because it was based upon “a differential diagnosis that provided a valid foundation for an expert opinion.” The flu shot was found to be “arising out of and in the course of the employment.” M.G.L. c. 152, § 26. The Court stated, “when the inoculation is not . . . strongly tied to the employment either by employer compulsion or by the special risks of the assignment, it may still be covered if there is a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations." [emphasis added]

The Court further said, “moreover, because the employee's receipt of the flu shot plainly furthered her employer's business interests, the benefit the employer received in this case was separate from and beyond "some element of mutual benefit in the form of lessened absenteeism and improved employee relations.”

As a result, the employee's blindness caused by the flu shot based on medical expert testimony was found work-related.
 
The Insurer’s defense of any claim occurring as a result of any Covid vaccination will require a complete investigation into the incidents of the employment and the reliability of the supporting medical opinion and the potential exposure.

The question of compensability for vaccines comes with it a variety of issues: accidents going to receive the vaccine, significant medical issues allegedly caused by the vaccine and the nature of the employer's involvement or request that a vaccine be required to work.

An employer need not compel or strongly encourage obtaining the vaccine for reactions to be compensable. However, an objective compulsion by the employer would be a significant compensability factor. Ordinarily, treatment or vaccines without a clear benefit to the employer should not be compensable, especially if it's a purely voluntary activity for one's personal benefit and/or the public good. The closer the connection to the employer (i.e. given out on the premises, paid by the employer, strongly recommended, etc.) the more likely that reactions and medical issues will be found to be compensable. It is a scale that must be examined in each and every case.




TKCK is a workers' compensation and civil litigation firm handling cases in the all six New England States (Massachusetts, Connecticut, Rhode Island, New Hampshire, Maine and Vermont) and at the Federal level for Longshore Harbor Workers’ Compensation Act and Defense Base Act claims.

We are approved panel counsel for most major insurers, including AIG, ACE/Chubb, Travelers, Liberty Mutual, Zurich, PMA, Utica, XL Specialty, Starr, The Hartford, CNA, Berkley, Acadia and others. We have longstanding partnerships with most major Third Party Administrators and Self-Insured Groups and we are designated counsel for many of the largest employers in New England.


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