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Private employers that require their workers to get vaccinated for COVID-19 are on notice: Their workers compensation insurers will likely foot the bill for vaccine injuries.
As of mid-February, seven states had introduced legislation requiring employers with mandates to cover such injuries under workers comp — a move some comp experts say is not necessary, as many have said that under a mandate a vaccination would arguably put a worker in the course and scope of employment. In 2021, more than a dozen states introduced such measures — none were successful.
Four of the seven 2022 bills — in Kentucky, New Hampshire, South Carolina and Wisconsin — are “presumption bills” for “adverse effects from a COVID-19 vaccination,” according to the National Council on Compensation Insurance.
That could be a problem for workers compensation, said Steve Bennett, Washington-based assistant vice president for workers compensation programs and counsel for the American Property Casualty Insurance Association.
“Adverse reactions to a vaccine would most likely be covered under comp, but let the worker prove it was an injury related to the vaccine requirement,” he said. Presumptions flip the burden to the employer to prove the injury was not caused by the vaccine in an environment in which medical information is continually in flux.
The challenge for workers comp will be to determine the difference between a COVID-19 vaccine injury and a side effect (see related story), and to navigate an unknown realm of claims.
Because workers comp insurance has little experience with mandated vaccines and vaccine injuries, experts say clues might be found in the federal vaccine injury program, which provides compensation for individuals harmed by vaccines.
Several insurers did not return requests for comment on the issue or declined to comment.
The federal Countermeasures Injury Compensation Program, run by the Health Resources and Services Administration, covers COVID-19 vaccines and provides compensation — “based on compelling, reliable, valid, medical and scientific evidence” — for injuries found to be “directly caused” by the medical intervention.
The so-called CICP has collected 3,321 claims alleging injuries or deaths from COVID-19 vaccines, according to a data page that was updated Jan. 1. This is different from the Vaccine Adverse Event Reporting System, which is a self-reported, non-verified database of alleged vaccine injuries — not claims for compensation. That system, dubbed VAERS, has garnered tens of thousands of entries.
A detailed chart of alleged injury claims filed with the CICP includes anaphylactic shock, myocarditis, and blood clots or thrombosis — all considered COVID-19 vaccine injuries by the Centers for Disease Control and Prevention. The list of other conditions touches on virtually all major health systems and includes appendicitis, hearing loss, kidney injury, arthritis and depression.
That could be a potential problem for workers comp: None of the vaccine injury bills introduced provide details of what constitutes a vaccine injury or adverse event. While the federal government has more than three decades of experience in handling vaccine injury claims, workers compensation has virtually no guidelines.
Jeff Adelson, a partner with Newport Beach, California-based Adelson McLean P.C., said he has been getting “a lot of questions” from employer clients regarding who pays when someone is harmed by a mandated vaccine.
“The end result of injuries or claims by employees required to be vaccinated will likely fall on the workers compensation system,” Mr. Adelson wrote in a recent email to a client, in which he also addressed the federal program, referring to it as a “last resort” for a worker injured by a mandated vaccine.
The federal government sets the bar high for vaccine injuries, according to James Ostendorf, of counsel with Dane Shulman Associates LLC in Boston.
“You have to tie the claim to a known side effect of the vaccine, and if you can’t your route will be much more difficult,” he said, adding that the federal government relies on a list of proven, well-documented injuries. “It depends on what you are claiming and what vaccine, and whether anybody else has had that issue.”
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For acceptable COVID-19 vaccine injuries, the federal government is “building the plane as we fly,” said Daniel Pogoda, Boston-based managing attorney with Dane Shulman. “Right now, it is hard to know what they are going to do with these vaccine injuries.”
The chances of a federal claim going through are slim, said Paul D. Rheingold, founder of Paul D. Rheingold P.C. in Rye, New York, adding that “in order to make a claim of your injury with the government you have to have strong proof.”
Mr. Rheingold said he sees one “viable” claim for about every 150 calls regarding alleged COVID-19 vaccine injuries. Given the bar set by the federal government, it’s not an easy road, he said, adding that the government requires “epidemiological proof” of injury, which with such a new vaccine is hard to gather.
“They need to find a significant statistical rise (in injuries among) people taking that vaccine, and the CDC or the Mayo Clinic has to come up with data or studies,” he said.
If a potential client is employed and the vaccine was required for work, Mr. Rheingold gives this advice: “Look into workers comp.”
The Centers for Disease Control and Prevention cites COVID-19 vaccine injuries as rare and describes side effects as mild, including pain, redness or swelling at the injection site, tiredness, headache, muscle pain, chills, fever and nausea.
As for more serious events, the list is short: myocarditis and pericarditis, anaphylaxis, thrombosis with thrombocytopenia syndrome, Guillain-Barré syndrome and death are included in a Feb. 14 update.
For an injury to be compensable under a system such as workers compensation, anything that requires medical intervention is “what I would start to think of as an injury,” said Dr. George W. Rutherford, professor of epidemiology at the School of Medicine at the University of California in San Francisco. But he cautioned the lines could blur.
“A side effect is your arm is sore,” Dr. Rutherford said. “A side effect is a temporary, mild to moderate reaction, and it causes no lasting harm,” he said.
James Ostendorf, a vaccine injuries attorney with Dane Shulman Associates LLC in Boston, said if the COVID-19 vaccine follows the script on injuries related to other vaccines the most common issue will likely have nothing to do with the vaccine specifically.
“The injuries we are seeing have nothing to do with COVID. These are general injuries that happen to people who just get vaccines,” he said. “It comes from the fact that you are being injected with some vaccine; they are injuries to muscles and tendons when they are given the vaccine in the wrong place.”
Such an adverse event, he said, can lead to paralysis. However, such events are “astronomically rare,” he said.
Daniel Pogoda, managing attorney at Dane Shulman, said the volume of claims right now stems from the magnitude of the COVID-19 vaccination program.
“These injuries have been happening for decades,” Mr. Pogoda said. “The thing is not that these are new injuries, but that all these people have had these vaccines all at once, which has never happened. … Something like this is making that very, very tiny percentage of people who get (a) vaccine injury seem like suddenly it’s everywhere, because of the numbers game you are playing.”