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It’s official: Employer-provided influenza vaccinations that result in injuries are compensable under the Workers’ Compensation Act. The Superior Court so held in a Jan. 30 opinion, and, on the brink of this year’s flu season, an en banc panel of the Delaware Supreme Court has affirmed the ruling. The high court issued its two-page order in E.I. du Pont de Nemours & Co. v. Faupel on Sept. 27, upholding the decision below “on the basis of and for the reasons assigned by the Superior Court in its well-reasoned decision.” To be covered under the act, a vaccine-related injury must both “arise out of” and be suffered “in the course of” the claimant’s employment, the Superior Court held in its decision. Writing for the court, Resident Judge Richard R. Cooch stated that in cases in which the employer has not required flu vaccinations, the arising-out-of prong of the test can be satisfied by a showing that the employer strongly urged its employees to be vaccinated, and that the inoculation provided a mutual benefit to employer and employee. The Superior Court upheld the grant of workers’ compensation benefits to an E.I. du Pont de Nemours employee who had become ill after receiving a company-provided inoculation. Claimant Barbara Faupel developed Guillain-Barre Syndrome (GBS) as a result of the flu shot that DuPont administered to her in October 2001, Cooch’s 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. Cooch identified the second prong of the aforementioned 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. In deciding to award Faupel benefits, the Industrial Accident Board (IAB) relied on Larson’s Workers’ Compensation Law and adopted the treatise’s strong urging/mutual benefit test. Applying the test, the IAB determined that Faupel’s injury arose from her employment, even though DuPont did not require its employees to receive flu shots, the opinion said. DuPont had frequently reminded its employees that flu shots were available, had sent e-mails about the vaccination program directly to its employees, and had 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 had 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 conclude 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. At the IAB hearing, a DuPont nurse testified that flu inoculations could reduce absenteeism and promote positive employer/employee relations, the opinion said. Cooch agreed with the IAB and held that Faupel’s injury arose from 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, on the basis of 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 concluded.

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