ADJ15229971 · March 17, 2023

The injury arose out of and in the course of employment because the employer strongly encouraged vaccination to reduce absences and maintain workforce availability, and the vaccination substantially benefited the employer. The applicant's injury from vaccine side effects is compensable under established case law even though vaccination was not mandatory.

From the decision · page 1Whether an employee's injury arose out of and in the course of employment is generally a question of fact to be determined in light of the particular circumstances of the case. (Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346 [67 Cal.Comp.Cases 51].)

Unrebutted medical reports established causal link between vaccine and applicant's injury.

Favours Applicant prevailed

Supports finding that injury arose out of vaccination and is compensable.

From the decision · page 5Also, there is no medical issue that the Moderna shot caused serious side effects to the applicant. The un-rebutted medical reports of Dr. Fieman credibly establish the causal links.

Employer strongly encouraged but did not mandate vaccination to reduce absences and maintain workforce.

Favours Applicant prevailed

Shows vaccination was substantially for employer's benefit, supporting compensability of injury.

From the decision · page 1Whether an employee's injury arose out of and in the course of employment is generally a question of fact to be determined in light of the particular circumstances of the case. (Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346 [67 Cal.Comp.Cases 51].)

Leonard Van Stelle, Inc. v. Industrial Acc. Com. (1963) 59 Cal.2d 836

Dual purpose rule: if an employee's activity combines personal acts with the business of the employer and the business is a substantial factor, the activity is considered in the course of employment.

Applied to find that applicant's vaccination decision substantially benefited employer and was not purely personal.

From the decision · page 1As the WCJ noted in his report, the parties agree that the employer encouraged but did not require employees to be vaccinated against COVID-19 because applicant's employer was concerned about having enough employees available and wanted to reduce the number of employee absences. The "dual purpose" rule states, "If the employee's activity has a dual purpose, i.e., if he combines personal acts with the business of his employer, and the business is a substantial factor, he is considered in the course of his employment." (Leonard Van Stelle, Inc. v. Industrial Acc. Com. (1963) 59 Cal.2d 836, 840 [28 Cal.Comp.Cases 140].) In this case, applicant's employer strongly encouraged vaccination with an aim of reducing absences. Applicant's decision to be vaccinated substantially benefited his employer and was not a purely personal decision.

Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559

Personal convenience doctrine: acts of personal convenience are within the course of employment if reasonably contemplated by the employment.

Applied to find that applicant's vaccination to avoid illness impairing work ability was incidental to employment.

From the decision · page 1In addition, applicant's decision to be vaccinated may be analyzed under the personal convenience doctrine. "Acts of `personal convenience' are within the course of employment if

Roberts vs. USO Camp Shows Inc. (1949) 14 CCC 136

Exclusive remedy doctrine bars civil action for injuries caused by required inoculations.

Cited as related precedent on inoculation injuries and exclusive remedy.

From the decision · page 6In Roberts vs. USO Camp Shows Inc. (1949) 14 CCC 136 the Second District Court of Appeal held that where a musician was required to obtain "various inoculations" and contracted encephalitis as a result, he was barred from pursuing a civil action due to the application of the exclusive remedy doctrine. This case actually has a related holding that the then-new Labor Code § 2802 could not be used to get around the exclusive remedy doctrine.

Maher vs. WCAB (1983) 33 Cal.3d 729

Mandated medical treatment side effects compensable if treatment required for employment.

Cited to support compensability of side effects from employer-required treatment, extended to encouraged vaccination.

From the decision · page 6Similarly, in Maher vs. WCAB (1983) 33 Cal.3d 729; 190 Cal.Rptr 904; 48 CCC 326, the California Supreme Court held that where mandated testing of a hospital worker was found to be positive for tuberculosis and where the worker was required to have treatment for tuberculosis in order to maintain her employment at the hospital, the side-effects of the treatment became compensable. This case is interesting in that it provides a very complete AOE analysis.

St. Agnes Medical Center vs. WCAB (Cook) (1998) 63 CCC 220

Optional inoculation side effects compensable if employer benefits and encourages vaccination.

Applied to find that optional vaccination encouraged by employer is compensable.

From the decision · page 6More recently, in St. Agnes Medical Center vs. WCAB (Cook) (1998) 63 CCC 220 the WCAB in a panel decision applies the Maher analysis to a case involving the side-effects of a flu shot mandated by the employer.

Testimony of both parties confirming the employer strongly encouraged but did not mandate vaccination.

Unrebutted medical reports of Dr. Fieman establishing causal link between vaccine and injury.

From the decision · page 5Also, there is no medical issue that the Moderna shot caused serious side effects to the applicant. The un-rebutted medical reports of Dr. Fieman credibly establish the causal links.

Employer's witness testimony that vaccination was encouraged to maintain sufficient workforce and reduce absences.

From the decision · page 7Lastly, defendant also argues that the evidence does not show that making the Moderna vaccine was of benefit to the City. This assertion is contradicted by the defendant's own witness. She testified that she encouraged the firefighters and EMT's to obtain the shot so that she could keep enough employees on duty to provide services. Also, one could imply that the fact that she sent emails and facilitated the provision of the vaccine to her employees shows that she was aware of the benefits of obtaining full compliance.