The DWC has announced that it is adopting updated nature of injury codes to track adverse reactions to COVID-19 vaccines.  A March 4, 2020 article on workcompcentral.com noted that “Workers Compensation Insurance Organizations updated a new code 38 for adverse reaction to a vaccination or inoculation and revised cause of injury code 82 to cover non-impact injuries resulting from inhalation, absorption, ingestion of harmful substances or vaccines.  To report an adverse COVID-19 vaccination claim, the DWC said to use the new code 38 for the nature of injury and cause of injury code 83 for pandemics.”  Is this a step toward recognizing adverse vaccine events as covered by workers’ compensation?

Unfortunately, employers are in a Catch-22 situation in regards to requiring or even suggesting that employees take the COVID-19 vaccine. 

Employers are required to provide a safe workplace under OSHA and Cal/OSHA as well as local laws.  If an employee were to contract COVID-19 and worked for an employer that did not require vaccination, they could claim it was an unsafe workplace. However, if they get the vaccination, and have an adverse reaction, they may be able to file a successful claim for workers’ compensation benefits for a workplace injury. Having an injury code would certainly assist with getting the WCAB to recognize this claimed workplace injury.

The employer could be facing liability questions under OSHA, Cal\OSHA, ADA, DFEH, or even religious exemptions if they require vaccination as a condition of employment.  However, let us focus here on California workers’ compensation.  For an adverse vaccine reaction, an employee may make a claim of injury AOE\COE and could potentially make a serious and willful claim, though that would be an extreme case and a very steep hill to climb.

AOE/COE

The initial inquiry, of course, is whether an adverse vaccination reaction is an injury AOE\COE under California Workers’ compensation laws.  The answer is, possibly yes.  This is particularly true when considering the rule of liberal construction in Labor Code §3202.

Absent a presumption similar to the ones already in place for COVID-19 workplace exposure, an adverse vaccination reaction is possibly a compensable injury anyway. While there are no COVID-19 vaccine injury cases (yet), there are other vaccine injury cases to which we can analogize.  These are cases where an employee’s adverse reaction to a mandated vaccine was deemed a compensable injury for purposes of workers’ compensation.

The Court of Appeal in Roberts v. U.S.O. Camp Shows, Inc. (1949) 91 Cal.App.2d 884, 885 addressed this issue regarding an adverse reaction to “various inoculations for immunization by physicians designated and paid by defendant”.  The court found that the injuries were solely compensable under workers’ compensation as the employee’s “incapacity caused by an illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer.”

The California Supreme Court in Maher v. Workers' Comp. Appeals Bd., (1983) 33 Cal. 3d 729 relied on this language in Roberts holding that “The rule is well settled that where an employee submits to an inoculation or a vaccination at the direction of the employer and for the employer's benefit, any injury resulting from an adverse reaction is compensable under the Workers' Compensation Act.” (pp. 734 – 735) The Supreme Court has not backed off this position.  Instead, it positively cited the Roberts language again in Latourette v. WCAB (1998) 17 Cal. 4th 644, 654.

It is by no means a certainly, but it seems clear that an adverse COVID-19 reaction will possibly be considered an injury AOE\COE under California workers’ compensation.  This is the most likely result if the employer’s vaccination policy was mandatory or “strongly suggested”.  Either way, the employee submitted to an inoculation or a vaccination at the direction of the employer and for the employer's benefit (Mahr) and the employee would have submitted to the vaccination pursuant to the direction or for the benefit of the employer (Roberts and Latourette).

Serious & Willful

If the vaccination is either mandatory or recommended, and an adverse reaction occurs, can an the injured worker make a successful serious and willful claim under Labor Code §4553. 

“It follows that an employer guilty of serious and willful misconduct must know of the dangerous condition, know that the probable consequences of its continuance will involve serious injury to an employee, and deliberately fail to take corrective action.” Johns-Manville Sales Corp v. Workers’ Comp. Appeals Bd. (Horenberger) (1979) 96 Cal. App. 3d 923

The employee could argue that, by requiring (or strongly suggesting) an untested vaccine, the employer knew that they were unreasonably subjecting the employee to a risk that had a probable consequence of a serious injury in the form of an adverse reaction.  However, it will be very difficult to prevail on this argument.  While the probability of a serious adverse reaction is currently unknown, the vaccines currently on the market have FDA approval.  The Federal government has not only decided that these vaccines are safe for use, several federal officials including the current President and Vice President of the United States and several members of Congress have taken the vaccine live on video to demonstrate it is safe.  An employer should be able to rely on this to counter any S & W claim.

Bottom line, we can expect workers’ compensation claims for adverse vaccine reactions.  These new injury codes are just a step on that path.