Torrey: Court Upholds Award to Worker Who Sustained Flu Shot Injury

Tuesday, January 4, 2022 | 0

The Commonwealth Court of Pennsylvania (an intermediate appellate court) held on Dec. 23 that the workers' compensation judge, in his grant of an original claim for a flu-shot-induced “transverse cervical myelitis,” did not rely on the purportedly incompetent opinion of claimant’s expert. 

David B. Torrey

That expert, the court stated, did not rely on a hypothetical without a basis in the record, nor did he rely alone, and in a critical aspect, on the hearsay report of a California-based consultant (Dr. Lawrence Steinman, of Stanford) on the issue of causation.

Meanwhile, the WCJ had legitimately rejected the testimony of employer’s expert that claimant’s permanently impairing condition had nothing to do with his cervical spine pathology but was, instead, reflective of the natural progression of preexisting cervical stenosis and the effects of delayed surgical intervention for the same.

The parties, judge and court all took for granted, correctly, that an injury-causing inoculation sustained at an on-site, employer-sponsored flu shot clinic constitutes an injury arising in the course of employment and (as shown by the credible expert proofs) is medically related thereto. Under Pennsylvania law, an "injury" is any adverse and hurtful change sustained by an individual. 

To read the text of Home Depot USA Inc. v. Noorami (WCAB), click here.

David B. Torrey is adjunct professor of law at the University of Pittsburgh School of Law and a workers’ compensation judge with the Pennsylvania Department of Labor & Industry. This entry is republished from the Workers' Compensation Law Professors blog, with permission.