It’s an interesting question. Covid-19 vaccination is a big issue. I suspect many employers will require workers to receive the vaccination. In a recent blog post, one Birmingham law firm writes about an opinion of the Alabama Attorney General from 2003 discussing employer-provided vaccinations.
I’m not writing to discuss whether or not an employer can require vaccinations. Rather, my law practice focuses on helping those injured. So, that is also the focus of this post. My issue — Are injuries from employer-provided vaccinations compensable under the Alabama Workers’ Compensation Act?
Before I begin, let me say I think vaccinations are essential to public health. Like any medical treatment or procedure, a tiny risk always exists. Have you ever pulled a back muscle? If so, physical therapy may be very helpful in your recovery. Yet, you face a risk of being injured in a car accident on the way to therapy as well as a risk of injury from the therapist’s equipment. But, the benefits of therapy far, far outweigh these very remote and unlikely risks. The same is true for almost any medication or medical treatment. Any medical treatment comes with small risks. With vaccines, the benefits to you, your family and society, far outweigh any minuscule risk. Hopefully, widespread vaccination will save many lives from this terrible virus.
I am familiar with the Alabama Attorney General’s earlier vaccination opinion. The Attorney General’s opinion relates to a smallpox vaccination program where healthcare providers vaccinated their own employees. At the end of the day, the Attorney General’s opinion is just that — An Opinion. Ultimately, legal issues are decided by the courts.
In recent years, I actually helped a nurse seek work comp benefits following an employer-provided hepatitis vaccine injury. Most healthcare providers have programs that provide hepatitis vaccinations to their workers. These programs are a huge benefit to the medical clinics, the medical workers, and the public. They are typically voluntary. The one in my case was. My nurse client accepted a job with Occupational Health Group (OHG) in Huntsville and received a hepatitis vaccination provided by OHG at the start of her employment. In fact, OHG provided these vaccinations at no cost to all its healthcare workers. This vaccine program greatly reduces the serious risk a healthcare worker will contract hepatitis while handling blood or other bodily fluids. Again, the benefits far, far outweigh any extremely rare risk.
I’m not writing to question the benefits. Unfortunately, my nurse client was the one-in-a-million who suffered an adverse reaction to the vaccine. She suffered a rare, but disabling, reaction. Should work comp provide her benefits, including medical care? I think so.
In my earlier case, the work comp insurance company denied the nurse’s claim. She hired me. We filed a work comp lawsuit in Decatur. After a court fight, we were able to obtain the disability and medical benefits she needed.
Some of the articles I’ve recently read characterize the 1983 Attorney General opinion as establishing causation. That’s not fully correct. In any of these cases, you must prove both medical and legal causation. These are two separate issues. The first is medical causation. Did the event (the vaccination) medically cause my injury or disability? That’s a question requiring opinions of medical experts. In my earlier nurse hepatitis vaccination case, the reaction was so extremely rare, no local Huntsville doctors understood the science. I retained a medical expert affiliated with Brown University who specialized in vaccination science and reactions. The medicine was fascinating.
The Attorney General’s opinion did not discuss medical causation. If you claim any vaccine-related injury, you need some medical evidence connecting the injection to the injury. With any injury, you need medical evidence establishing that the event was a cause of the injury. In our law practice, we spend much of our time working with medical experts on injury cases.
The Attorney General’s opinion covered a completely different issue, only legal causation. What is legal causation? With legal causation for a workers’ compensation case, the essential issue is whether the employment itself was the source of the accident. Courts often phrase the issue as whether the accident arose out of and in the course of employment. With legal causation, we are looking at whether the vaccination arose out of your employment. In a recent blog post, I discussed lightning-strike injuries. They are a good example. Anyone outdoors can be struck by lightning. Did the employment itself put the person at risk? Did the employment put the person at increased risk beyond a normal person? Sometimes, this can be a very gray issue. With vaccines, I think much of the issue will involve who is actually providing or administering the vaccination. On a broader note, hopefully coronavirus vaccinations will allow our communities to resume normal life in the coming months.
The Blackwell Law Firm represents injured workers across Alabama. We have tried workers’ compensation cases to verdict in counties across the state. If you have questions about a work-related accident or injury, let us know. Consultations are always free and confidential.