Sticking Points Part 2: A Survey of Remedies for Vaccination Injuries, 1121 COBJ, Vol. 50, No. 10 pg. 32
| Author | BY GREGORY B. CAIRNS, MARK SALIMAN, KENNETH PLATT, AND DAVID SESERMAN |
| Position | Vol. 50, 10 [Page 32] |
BY GREGORY B. CAIRNS, MARK SALIMAN, KENNETH PLATT, AND DAVID SESERMAN
This two-part article provides an overview of federal and state remedies available for vaccine injuries, including COVID-19 vaccinations. It offers practical guidance for practitioners to triage injury claims. This part 2 explores remedies outside the two federal programs discussed in part 1.
Part 1 of this article presented an overview of remedies for vaccination injuries that are available under two federal programs, the National Injury Compensation Program (VICP), which covers the harmful effects of routine childhood and most adult vaccinations, and the Countermeasures Injury Compensation Program (CICP), which covers some damages flowing from "countermeasures" used to combat domestic terrorism and pandemics.1 This part 2 explores additional federal and state law remedies, including workers' compensation, non-workers' compensation funds, employment remedies, and traditional tort remedies.
Additional Remedies for Vaccination Injuries
In addition to VICP or CICP remedies, where available, a person injured from a vaccine administered in Colorado may pursue one or more of the following remedies, depending on the circumstances of the injury:
■ workers' compensation benefits, which include medical benefits and wage replacement benefits, if the employer requires the vaccination.
■ medical care under private or public health care plans if workers' compensation benefits are not available.
■ wage replacement benefits through disability or welfare programs, regardless of whether the injured person is entitled to workers' compensation benefits, though offsets may be taken against workers' compensation benefits received.
■ other state or federal remedies, including civil service and union protections, where a person's job, wages, or benefits are jeopardized by an extended absence or unlawful employer discrimination.
■ a Colorado tort law claim, if the vaccination is not subject to the VICP or CICP, or if the injured person withdraws from the VICP, as discussed in part 1.
Colorado Workers' Compensation
The Workers' Compensation Act of Colorado (Act)[2]covers injuries "arising out of and in the course of employment."3 Therefore, an employee who receives a vaccine as a condition of employment and suffers an injury has a compensable injury. The scope of workers' compensation coverage extends to travel to and from the premises where the vaccination was administered[4]and to any additional injury due to treatment for the vaccination's effects.5
Even if an employer does not explicitly require a vaccination, claimants may argue that they are entitled to workers' compensation benefits if the vaccination confers a direct benefit to the employer. The availability of this "dual purpose" liability6 is heightened if the employer encourages or pays for employees to be vaccinated. The success of these claims depends on the specific facts of each case, but it is well established that claimants in other contexts have been compensated when their actions, although not specifically directed or controlled by the employer, have benefited the employer.7
However, employees who are vaccinated as part of a voluntary wellness program would not be eligible for workers' compensation unless they can prove by a preponderance of the evidence that they faced explicit or implicit pressure to participate in that program or that management directed employees to use the wellness program to obtain the vaccination.[8]
An employment applicant who receives a job offer conditioned on a vaccination is likely eligible for workers' compensation benefits.9On the other hand, a job applicant who has not received a job offer but who receives a vaccine would likely not be covered given the lack of a sufficient nexus between the injury and employment.10
Burden of Proof: Accident or Occupational Disease
The burden of proof for a vaccination injury may differ from that for an injury due to contracting a virus, such as CO\TD-19, at work. To obtain this benefit, claimants must prove, by a preponderance of the evidence, that they have suffered an injury or need for medical evaluation that was proximately caused by the vaccination and the vaccination was an employment requirement. A vaccination injury is an "accident" or "traumatic injury" that is traceable to an event with a certain date and place.[11]Conversely, some diseases, including COVID-19, may be caused by a specific event, but others are better described as occupational in nature because they are caused by multiple exposures over time. The Act defines an occupational disease as one that
■ results directly from the employment or die conditions under which work was performed,
■ can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment,
■ can be fairly traced to the employment as a proximate cause, and
■ does not come from a hazard to which die employee would have been equally exposed outside of the employment.12
As to COVTD-19, contraction of the novel coronavirus may be due to a series of traumatic events that are reasonably traceable to particular times and places, because contraction of COVTD-19 usually depends on exposure to a sufficient viral load in the claimant's air space incurred within a certain time period. Accordingly, the resultant injury is better characterized as an "accident" rather than an occupational disease. While categorization of a claim as an "accident" or an "occupational disease" is important for legal analysis (i.e., for identifying parties liable or for apportionment), such categorization may be irrelevant for purposes of obtaining medical treatment or calculating disability benefits.
Available Benefits
A vaccination-injured employee is potentially eligible for the following benefits:
■ medical benefits without deductibles or co-payments with designated providers, potentially for life;
■ temporary total disability benefits up to die applicable state maximum for total loss of income;
■ temporary partial disability benefits up to die applicable state maximum for partial loss of income;
■ permanent partial disability benefits based on medical impairment to compensate for future wage loss;
■ permanent total disability benefits, which are for life, if the employee can prove inability to earn any wages from the same or any other employer; and/or
■ compensation for bodily disfigurement. Workers' compensation insurance carriers or self-insured employers may also offer vocational rehabilitation benefits, but these benefits are voluntary and are rarely provided.[13] Pain and suffering damages are not available for injured workers.
Procedural Matters
Written claims for compensation must be filed within two years of injury, or within three years with "reasonable excuse," or they will be barred.14 Notice must be given to the employer of any injury within four working days, and penalties can be assessed for noncompliance, though the claim is not barred due to late notice if the filing requirements are met.15
Workers' compensation indemnity benefits may be offset for unemployment compensation benefits16 and Social Security benefits.17 An employee can accept both state workers' compensation benefits and federal vaccination compensation program funds, and insurance carriers cannot reduce workers' compensation benefits for receipt of federal program funds.18 Liens can be placed on workers' compensation benefits only for unpaid child support payments or fraudulently obtained public assistance.19
Colorado workers' compensation is an administrative "no fault" system,20 and eligibility determinations for vaccination injuries focus on causality rather than comparative fault. Apportionment due to preexisting conditions may be applicable,21 but an aggravation of a pre-existing condition is potentially compensable.22 Generally speaking, workers' compensation is an "exclusive remedy" in the sense that an employee cannot sue an employer for negligence or intentional tort for requiring the employee to undergo a vaccination.23 Nonetheless, claimants may not be barred from filing a medical malpractice action against a fellow employee whose job is to provide them with medical services.24 Subrogation is available to the benefits payor due to the malfeasance of a third party responsible for the injury.25
Although the legislative intent is for the system to accomplish "quick and efficient delivery" of benefits,26 the reality is that claims adjudications may take months or even years due to administrative backlogs and administrative and judicial appeals. As a consequence, many contested claims are resolved through settlement.
Federal Workers' Compensation
The federal government provides workers' compensation benefits to employees through several programs, including the Federal Employees Compensation Act (FECA).[27]Injured individuals who work for a federal agency should consult with an expert in federal workers' compensation benefits about applicable statutes of limitations,28 eligibility requirements, and type of benefits available.
Remedies When Workers' Compensation is Unavailable
If workers' compensation is not available, or while a workers' compensation claim is pending, the claimant may seek various funds to pay for medical treatment and for lost wages.
Medical Treatment
Sources of coverage for medical treatment include
■ health insurance
■ health care continuation coverage (COBRA)
■ Medicaid or Medicare
■ public hospital systems
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