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Kara Barbour v. Kaiser Foundation Health Plan

Statement of Facts

The Applicant is a 38-year-old LVN, alleging industrial injury to her eyes in the form of optic neuritis, subsequent to receipt of a COVID-19 booster shot, which was received on the clock while employed at Kaiser.

Questions:

  1. Is an employer insulated from liability for an adverse reaction to a COVID vaccine pursuant to the Public Readiness and Emergency Preparedness (PREP) Act?
  2. Does federal preemption remove this claim from the WCAB’s jurisdiction?

Summary

  1. It appears that despite the Court’s holding in Navarro, the PREP Act’s limitation to liability applies to outside suits (e.g., a patient suing the vaccine manufacturer or the person administering the vaccine for harm arising from the vaccine).
  2. The Health Resources and Services Information’s Countermeasures Injury Compensation Program (CICP) seemingly provides a carve out for workers’ compensation benefits. Pursuant to their website, benefits payable by the CICP are to be offset by workers’ compensation benefits. Therefore, based on a strict interpretation of the act giving rise to this benefit, it appears that an applicant can receive workers’ compensation benefits, or CICP benefits for a potential vaccine injury, but not both.

Discussion

Is an employer insulated from liability for an adverse reaction to a COVID vaccine pursuant to the Public Readiness and Emergency Preparedness (PREP) Act?

First, it’s important to note that there is precedent for this type of claim. Pursuant to Labor Code §3208.05, an “injury” includes a reaction to or a side effect of preventive healthcare provided by an employer to a health-care worker who is one of its employees. So, if the employer is a health-care provider –– that is, the predominant business of the employer is health care –– and it provides the vaccine to its own employees, any injury resulting from it would be compensable under this law.

In the instant matter, the applicant was provided the vaccine while on the job. Text messages provided by the applicant during the course of discovery indicate that the applicant’s supervisor advised her to obtain the COVID-19 vaccine while on the clock. Kaiser is an employer whose predominant business is healthcare. As such, it appears that Labor Code §3208.05 is applicable to the instant matter.

Additionally, in the matter of Roberts v. U.S.O. Camp Shows, Inc, the California Court of Appeal advised that incapacity caused by 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. Roberts v. U.S.O. Camp Shows, Inc. (1949) 91 Cal. App. 2d 884, 885.

Here, we know that the applicant has evidence that her supervisor seemingly encouraged her to obtain the vaccine while on the clock. While it is arguable that this was for the benefit of the employer, the fact that she was apparently not supposed to leave the premises to obtain the vaccine tends to infer that she was staying on premises for the benefit of her employer.

It is not clear that it was mandatory for her to take the vaccine as a condition of her employment, but the case law in question seems to provide a much lower threshold than whether the action was mandatory. The threshold is whether it was for the employer’s benefit.

As we know from the line of case law regarding the coming and going rule, and Labor Code §3202, benefits shall be shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment . . . where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.

An act that is for the “employer’s benefit” can be as simple as deviating from a lunch route to obtain something on the employer’s behalf. As such it appears that it would be to the employer’s benefit if she refrained from leaving the premises, as this could potentially be so that she could not miss too much time from work, leading to her being more productive on the job, etc. She could also say that taking the vaccine was for the employer’s benefit as she would have less of a chance of taking time off of work due to the lower chance of coming down with COVID-19. This is speculative, but the bottom line appears to be that she has a good chance of proving that taking the vaccine on the job was for the employer’s benefit.

Therefore, it does appear that by arguing that she received the vaccine at work per her employer’s instructions, she can argue that the adverse reactions to the vaccine did arise AOE/COE because per Roberts, she took the vaccine for the employer’s benefit.

Now with respect to Kaiser being insulated from liability pursuant to the PREP Act, it does not appear that the PREP Act contemplates claims filed by an employee against its employer. Rather, the PREP Act seems to insulate a manufacturer or vaccine administrator from liability for adverse reactions arising from the vaccine, against claims filed by a third-party/non-employee, recipient of the vaccine.

Indeed, there is a liability shield imposed by the PREP Act and the use of CICP when consumers try to sue healthcare agencies, administrators, etc. and their agents for the “compensable consequences” of vaccines or the administration thereof.

In the matter, Navarro, the WCAB addressed whether an applicant was discriminated against when an employer terminated ERISA based group health care benefits to an alleged injured worker. The WCAB declined to reach a determination about whether there was discrimination pursuant to Labor Code §132(a), because the benefits arose under ERISA, which is a federal benefits plan that superseded the WCAB’s jurisdiction over the issue.

In the instant matter, the PREP Act does not appear to provide such a carve out, because it does not appear to apply to disputes regarding injury AOE/COE filed by an employee against an employer. Rather, the PREP Act is designed to insulate healthcare agencies, administrators, and their agents against lawsuits filed by recipients of the vaccines.

For the reasons noted below in assessment of the Federal Preemption issue, the PREP Act appears to provide a carve out for workers’ compensation claims; therefore, it appears that an employer is not insulated from liability for an adverse reaction to a COVID vaccine pursuant to the PREP Act.

Does federal preemption remove this claim from the WCAB’s jurisdiction?

Since we know that the PREP Act does appear to exclude workers’ compensation claims from its protections, the question then becomes whether there are any other federal preemptions which would remove such a claim from the WCAB’s jurisdiction. The answer appears to be no.

The Health Resources and Services Administration’s website provides an advisory opinion relevant to our inquiry, which can be located here.

Therein, it states that CICP benefits are reduced by the amounts payable by other public and private third-party payers (such as health insurance and workers’ compensation).

As such, it appears that the opinion specifically carves out an exception for the workers’ compensation system, showing the intent of the legislature to not preempt state workers’ compensation law/safeguards.

Further, the case law observed did not address scenarios involving workers’ compensation benefits. Rather, they dealt with claims filed by parents whose children were vaccinated without their consent, or a physician’s failure to provide informed consent to an adult patient to whom a vaccine was administered.

The Appellate Division of the New York Supreme Court issued a ruling in the matter of Parker v. St. Lawrence County Public Health Department, (2012), 102 A.D.3d 140 wherein they upheld PREP Act protections for a county that conducted a school-based vaccination clinic in response to the H1N1 outbreak.

During the clinic, a nurse employed by St. Lawrence County inadvertently vaccinated a kindergartener in the absence of informed, parental consent. The child’s mother filed suit, arguing that the county had committed negligence and battery. The county moved to dismiss the complaint on the basis that the claim was preempted under the PREP Act. The lower court denied the defendant’s motion to dismiss, asserting that the PREP Act was not intended by Congress to protect against claims arising from failure to obtain informed consent. The county appealed and the United States submitted an amicus brief supporting the county.

The appellate court dismissed the plaintiff’s claims, finding that the federal PREP Act preempted the claims under state law and that the breadth of liability immunity provided under the PREP Act precluded the plaintiff’s claims of negligence and battery. The court noted the alternative remedy provided by the countermeasure injury compensation program and the possibility of a federal cause of action for willful misconduct claims.

In another case, Kehler v. Hood, 2012 WL 1945952 (E.D.Mo.), plaintiffs alleged that the physician and her employing hospital were negligent in failing to obtain the adult patient’s informed consent and a consult from a specialist prior to the administration of a vaccination, which resulted in a severe case of transverse myelitis to the patient, and loss of consortium to the spouse. Defendants then brought third-party product liability/failure to warn claims against the manufacturer.

The parties did not dispute that the manufacturer was protected by the PREP Act, nor did they allege that it engaged in willful misconduct. As a result, the federal Eastern District Court of Missouri dismissed the claim against the manufacturer. Finding that it had no jurisdiction over plaintiffs’ remaining claims, the federal court remanded the case to state court for further consideration of the plaintiffs’ claims.

Both Parker and Kehler above involve the failure to obtain proper consent prior to vaccination. The interpretation of the PREP Act’s language that the courts in these cases seem to be using is that the plaintiff, a civilian outside the employ of the healthcare system, would not be able to hold a practician personally liable in tort; use agency theory to pull in their employer; and/or use products liability theory to try to “sue up the chain” to distributors and manufacturers in a pandemic or outbreak, so-to-speak.

In light of the foregoing statutes and case law, I conclude that defense firms likely will not prevail in using the PREP Act as a shield, nor federal preemption to remove the case from California WCAB jurisdiction.

With that being said, it is important to note that neither of the aforementioned claims are part of the California court system, or even the 9th Circuit Court of Appeal. As such, it is not clear whether they would be binding precedent for a claim filed in the California workers’ compensation system.

Hereto is an article with listed factors by the California Peace Officers’ Association. Although not directly on point with healthcare workers, it can be extrapolated that front-line employees of a pandemic are treated much like first responders in an emergency; thus, a court may be inclined to weigh such factors.

Factors at play, identified by California Peace Officers’ Association:

  1. Encouraged by agency leadership or done with their knowledge;
  2. Access to the vaccine at this time is the result of law enforcement employment duties and responsibilities;
  3. Benefits the agency from reduced absenteeism;
  4. Reduces liability for the agency in the areas of Workers’ Compensation, maintaining a safe workplace, and risk of harm to community members or families of employees;
  5. Protects against a duty-related risk;
  6. Potentially conducted on employer premises or with grant of release time;
  7. First responders are at heightened risk of exposure; and
  8. Compensability is consistent with the presumptions created under Emergency Order N-62-20[3] and SB1159.[4]

The article goes on to mention that, in the totality of the circumstances surrounding COVID-19, “a public-safety employee in an assignment involving presence at the workplace will very likely be protected under Workers’ Compensation if they suffer an injury or illness from voluntary acceptance of the [COVID-19] vaccine.” Source: California Peace Officers’ Association, January 26, 2021: cpoa.org/voluntary-vaccine-and-workers-compensation/

Doctor administering shot

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