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Employer-provided influenza vaccinations that result in injuries may be covered under the Workers’ Compensation Act, the Superior Court has ruled in an issue of first impression. To be compensable, a vaccine-related injury must both “arise out of” and be suffered “in the course of” the claimant’s employment, the court said in Faupel v. E.I. duPont de Nemours. When an employer does not require flu vaccinations, the arising-out-of prong of the test will be satisfied if the employer strongly urged its employees to be vaccinated and the inoculation provides a mutual benefit to employer and employee, the opinion said. “This court finds the two-part ‘in the course of and arising out of employment’ test and [the strong urging/mutual benefit] analysis to be the correct statement of the scrutiny to be utilized when there is an issue of whether a vaccination, resulting in injury, arose out of and was in the course of employment,” Resident Judge Richard R. Cooch wrote for the court. In so holding, the court affirmed an Industrial Accident Board decision that granted workers’ compensation benefits to an E.I. duPont de Nemours employee who became ill after receiving a company-provided flu inoculation. Claimant Barbara Faupel developed Guillain-Barre Syndrome as a result of a flu shot that DuPont administered to her in October 2001, the opinion said. According to the Web site of the Guillain-Barre Syndrome Foundation International, GBS is an inflammatory disorder of the peripheral nerves — the nerves outside of the brain and spinal cord — that causes weakness and often paralysis of the legs, arms, breathing muscles and face. Though DuPont had offered flu vaccinations to its employees every year, the company had neither required that its employees receive the shots nor offered incentives for doing so, the opinion said. Rather, the vaccination program was provided as a convenience to employees, the opinion said. Faupel began to feel ill about a week after receiving the vaccination. According to the opinion, she experienced numbness and partial paralysis in her lower extremities, which eventually progressed to complete paralysis from the waist down, the opinion said. Faupel’s attorney, Joseph Weik of Weik Nitsche Dougherty & Componovo, said his client was hospitalized from late October 2001 through late February 2002 as a result of her illness. After several months of rehabilitation, the claimant regained the use of her legs, but as of the time of her March 2003 IAB hearing, she had not recovered feeling in her legs and relied on crutches or a motorized scooter to get around, the opinion said. Weik said Faupel is totally disabled and has been unable to return to work. As a result of her chronic condition, Faupel will require ongoing medical treatment, Weik said. The claimant was 51 when she received the shot. In November 2002, the claimant sought compensation for ongoing total disability and payment of her medical expenses, the opinion said. According to the opinion, DuPont disputed whether the claimant’s condition resulted from the vaccine and whether it provided the inoculation within the course and scope of her employment. “In the course of employment” refers to the time, place and circumstances of an injury, the opinion said. The IAB concluded that Faupel was injured in the course of her employment because the flu vaccine was administered at her workplace during normal work hours by company personnel, the opinion said. The Superior Court agreed. “Faupel was an employee of DuPont when she received the vaccination,” Cooch wrote. “Faupel received the vaccination on DuPont’s premises during normal working hours; further, there was no evidence that Faupel received the vaccination during a lunch break or other scheduled break time.” The Superior Court identified the second prong of the test — whether an injury arose out of a claimant’s employment — as the critical area of inquiry in the Faupel case. In order for an injury to arise out of a claimant’s employment, a reasonable causal connection between the injury and the employment must exist, the opinion said. The IAB relied on Larson’s Workers’ Compensation Law when it adopted the strong urging/mutual benefit test to determine that Faupel’s injury arose from her employment, the opinion said. The claimant told the IAB that some of the flyers that announced the vaccination program encouraged employees to get flu shots while supplies lasted, the opinion said. Employees also received bulk e-mails about the program. DuPont had strongly encouraged its employees to receive flu vaccinations, the IAB concluded. DuPont frequently reminded its employees that flu shots were available, sent e-mails about the vaccination program directly to its employees, and placed flyers about the vaccination program in prominent places, the board found. Relying on Saintsing v. Steinbach, a 1949 decision from New Jersey’s Appellate Division, the IAB determined that employer-provided vaccinations are mutually beneficial to employers and employees, Cooch wrote. In Saintsing, an employer provided smallpox vaccinations to its employees, one of whom suffered an injury from the shot. The Saintsing court said it would have been unrealistic to hold that the company provided the shots exclusively for the benefit of its employees, and not to further the employer-employee relationship or to safeguard itself from a smallpox outbreak among its workers. Under the Larson/Saintsing test, the mutual benefit to the employer and employee must include both reduced absenteeism and improved employee relations, the opinion said. At the IAB hearing, a DuPont nurse testified that flu inoculations could reduce absenteeism and promote good employer/employee relations, Cooch wrote. The nurse noted that when an employee gets the flu, he or she might be out of work for up to two weeks, the opinion said. The IAB determined that by providing the flu inoculations, DuPont had enhanced employer-employee relations and had furthered its interest in avoiding absenteeism, the opinion said. Cooch agreed with the IAB and held that Faupel’s injury arose out of her employment. “In the instant case, the IAB correctly looked at the quantity of the notices [to employees] as being determinative” of the strong urging issue, the opinion said. And based on the record and the board’s own expertise, the IAB had sufficient evidence to find that the vaccination provided a mutual benefit to DuPont and Faupel, Cooch wrote. “Other courts and authorities that have analyzed the question of whether a vaccination is compensable under workers’ compensation have held that when an employer provides a vaccination to employees, there is a benefit to the employer,” Cooch wrote. Further, “it is common knowledge that employee absenteeism from the common cold and the flu is expensive to business.” Robert Ralston of Wilmington, who represents DuPont, said his client will appeal the decision to the Supreme Court.

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