While we agree with the ALJ's ultimate conclusions in this case, we issue this separate opinion to provide a more thorough analysis with regard to the issue of whether employee sustained an injury due to an accident arising out of and in the course of her employment.
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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.
Section 287.020.2 RSMo defines "accident" as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."
Section 287.020.3 RSMo provides, as follows:
(1) In this chapter the term 'injury' is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and
(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life."
In this case, the inoculation was not an accident in and of itself because employee requested the inoculation and was expecting the nurse to provide her with the same. The inoculation was not an unexpected traumatic event. However, the reaction employee had as a result of the inoculation (transverse myelitis) was the unexpected traumatic event, identifiable by time and place of occurrence, producing objective symptoms of an injury, caused by a specific event, during a single work shift. We find that the reaction employee had from the inoculation satisfies the requirements of $\S 287.020 .2$ RSMo and, therefore, was an accident.
Having found that an accident occurred, we must now turn to the issue of whether the injury arose out of and in the course of employment.
With regard to § 287.020.3(2)(a), there is no dispute that the reaction employee had from the inoculation was the prevailing factor in causing her injury, transverse myelitis. Therefore, we find that the accident is the prevailing factor in causing the injury.
The primary issue lies in whether the injury satisfies § 287.020.3(2)(b).
Employee was administered the inoculation by an agent of employer, on employer's premises, and during employee's work shift. Receiving the inoculation was not a condition of employment, but employer offered inoculations to employees on a voluntary basis. Employer offered these voluntary inoculations because: 1) the Centers for Disease Control (CDC) and the Missouri Department of Health recommend vaccines for health care workers, such as employee; and 2) the inoculations are a method to help prevent infections in not only patients, but also employees.
Enployee: Karen Doyle
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Receiving annual inoculations of this sort is extremely important for employees working in a health care facility. Employer's health care professional, Christina Bennash Haley, testified as to the greater likelihood of contracting infection in a health care facility than other public or private areas. Ms. Haley's testimony, along with the recommendations from the CDC and the Missouri Department of Health, demonstrate that the complications resulting from a flu vaccine are a hazard or risk related to employee's employment. For these reasons, we find that the risk of developing transverse myelitis came from a hazard related to the employment.
The conditions of her employment, a health care provider, created the need for the flu vaccine to prevent infections with both patients and employees. The flu vaccine was the cause of her injury. Therefore, there is a clear nexus between employee's work and the injury.
Having found that there is a clear nexus between the work and the injury, the requirements of § 287.020.3(2)(b) are satisfied and there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life." *Pile v. Lake Reg'l Systems*, 321 S.W.3d 463, 467 (Mo. App. 2010).
For the foregoing reasons, we find that employee's transverse myelitis arose out of and in the course of her employment. The Commission agrees with the conclusions reached by the administrative law judge and affirms by this separate opinion. The temporary or partial award of Administrative Law Judge Margaret Ellis Holden, issued May 25, 2011, is affirmed, and is attached and incorporated by this reference.
This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.
In accordance with the ALJ's award, attorney fees are deferred for further proceedings.
Any past due compensation shall bear interest as provided by law.
Given at Jefferson City, State of Missouri, this 8th day of December 2011.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
DISSENTING OPINION FILED
Alice A. Bartlett, Member
CONCURRING OPINION FILED
Curtis E. Chick, Jr., Member
Attest:
Secretary
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the ALJ should be reversed because employee's injury did not arise out of and in the course of her employment.
I agree with employer's contention that the ALJ incorrectly distinguished the instant case from this Commission's decision in Pichainarong v. Ford Motor Company, 2009 WL 1904573 (Mo. Lab. \& Ind. Rel. Comm'n., July 1, 2009). In that case, the employee worked for Ford who offered free flu vaccines to its employees and he received a vaccine to which he had an adverse reaction. The Commission upheld the ALJ's denial of benefits in Pichainarong, finding that the fact that the employee was exposed to a risk greater than the risk the general public was exposed to was not in and of itself sufficient to make the connection between work and the injury.
Like the employee in Pichainarong, the employee in the instant case was offered and received a vaccine on employer's premises; the vaccine had been offered free of charge annually for many years; employees were notified of the availability of the vaccine; members of the general public were not able to get a vaccine from the employer; and the employer did not require its employees to receive the vaccine.
The ALJ distinguished the instant case by focusing on the different types of business manufacturing versus a health care facility. As employer pointed out in its brief, there is no evidence that this particular employer actually had a greater interest in providing the vaccine. Employer did not require the vaccine of any of its employees. In fact, employer did not even order enough vaccines for every employee.
The majority concluded that the conditions of the employment created the need for the flu vaccine to prevent infections with both patients and employees. However, this is an incorrect application of $\S 287.020 .3$ RSMo. The nexus must be between the employee's job duties and the accident and injury, not between the job duties and employer's business.
The application of § 287.020.3(2)(b) RSMo, involves a two-step analysis. Pile v. Lake Reg'l Health Systems, 321 S.W.3d 463, 467 (Mo. App. 2010).
The first step is to determine whether the hazard or risk is related or unrelated to the employment. Where the activity giving rise to the accident and injury is integral to the performance of a worker's job, the risk of the activity is related to employment. In such a case, there is a clear nexus between the work and the injury. Where the work nexus is clear, there is no need to consider whether the worker would have been equally exposed to the risk in normal non-employment life. Only if the hazard or risk is unrelated to the employment does the second step of the analysis
apply. In that event, it is necessary to determine whether the claimant is equally exposed to this hazard or risk in normal, non-employment life.
Id.
I do not find that employee receiving the flu vaccine (i.e., the activity giving rise to the accident and injury) is integral to the performance of employee's job. Although it did not come up at the hearing, I am assuming that employee preventing herself from getting the flu was not part of her job duties. While it may be beneficial to the performance of her job to remain healthy during the flu season, it is not logical to conclude that her receiving a preventative vaccine is integral to the performance of her job. For this reason, I conclude that the risk of the activity is not related to her employment.
Moving to the second step in the analysis, I find that an adverse reaction to a flu vaccine is a risk that everyone who receives the vaccine faces (i.e., a risk that employee is equally exposed to in normal, non-employment life). In other words, employee receiving this inoculation at work did not create a greater risk of her reaction than she would have had if she had received the inoculation on her own time at a place other than employer's facility.
Because the hazard or risk of the reaction to the flu vaccine was unrelated to her employment and because she was equally exposed to the reaction in her normal nonemployment life, I do not find that the injury arose out of and in the course of her employment.
For the foregoing reasons, I disagree with the ALJ's conclusion