Shanks v Heartland Regional Medical Center
2018 MO WCLR LEXIS 239
13-100429
Oct. 18, 2018
The Commission affirms a denial of benefits, but issues a supplemental opinion.
Claimant alleges injuries from a flu shot in 2013 including both physical and psychological injuries. The employer provided no benefits. The hearing did not address issues of permanent partial or permanent total disability.
Claimant had a flu shot at her employer's direction. Claimant reports she developed weakness and various neurologic symptoms. She had treatment in the past for fibromyalgia, anxiety and various orthopedic medical conditions. Claimant reports she has been unemployable since 2013.
The commission notes while a flu shot may be compensable, claimant failed to show physical injury or credible medical evidence of causation.
"We have previously found that where the employer creates the need for the flu vaccine to prevent infection of patients and other employees, that the hazard or risk that may result from a flu vaccination is related to employment. Karen Doyle v. Lakeland Regional Hospital, Injury No. 05-141082, (LIRC, Dec. 8, 2011) A vaccination resulting in objective symptoms of injury may be considered an unexpected traumatic event. However, unlike the case of Karen Doyle, there are no objective symptoms of injury shown to have resulted from the employee's alleged accident in the matter before us."
Dr. Koprivica testified on claimant's behalf that the flu shot caused various medical conditions including a conversion disorder. Dr. Claiborn, a psychologist, testified she had major depressive disorder and somatic symptom disorder. She scored in the 99th percentile on the hysteria scale.
The ALJ noted:
"I find Claimant failed to prove she sustained an injury by accident on or about October 1, 2013 arising out of in the course of employment for Employer. I find and conclude Claimant failed to prove that she sustained an accident that was the prevailing factor in causing both the medical condition and disability. I find and conclude Claimant failed to prove that she sustained an accident that was the prevailing factor in causing an injury. These conclusions are supported by the following:
I find causation of Claimant's alleged injury is not within common knowledge or experience and that expert testimony is required to establish causation of Claimant's alleged injury. Knipp, 969 .S.W.2d at 239; Royal, 194 S.W.3d at 378.
Claimant's treating doctors failed to diagnose a physical injury caused by Claimant's October 1, 2013 flu shot. The flu shot was not mentioned in Dr. Kempton's October 2, 2013 records. Dr. Kempton did not conclude Claimant's October 1, 2013 flu shot caused her symptoms and complaints. He did not diagnose an injury caused by the flu shot."
The defense relied upon expert opinion that the flu shot did not cause ataxia.
The ALJ found the shot did not cause the "tumbling of pain disorders" claimant attributes to the vaccination.
The Commission in its award noted the 93-page award by ALJ Miner were accompanied without commentary about what the ALJ considered important.
The Commission notes:
"There is some evidence according to the opinions of Dr. Koprivica and Dr. Claiborn that employee's manifestation of physical symptoms are the result of a psychological, conversion or somatoform disorder. The theory appears to be that the psychological disorder was triggered by the physical injury (an adverse reaction to the flu vaccine on October 1, 2013). Dr. Claiborn described the physical reactions to the flu vaccine as the "initiating" event to her somatoform disorder. Transcript, page 419-420. First, the legislature has instructed that, "an injury is not compensable because work was a triggering or precipitating factor." 287.200. RSmo.We do not mean to parse the doctor's words, but his meaning is somewhat unclear. If Dr. Claiborn's use of the word "initiating" was meant to suggest the vaccine was a triggering or precipitating event, the statute would not permit us to find the somatoform disorder as a compensable injury. If, however, he intended to declare the flu shot as the prevailing factor in the somatoform disorder, we have found this opinion unpersuasive.
Regardless of the nuances of the doctor's language, we are unable to conclude from the preponderance of the evidence that the flu vaccination (from which no physical injury or medical condition has been clearly diagnosed) was the prevailing, i.e. the primary factor, in relation to any other factors in causing a somatoform disorder. It is not "reasonably apparent, upon consideration of all the circumstances," that the work event is the prevailing factor in causing any injury -- physical or psychological."
Atty: Smith, Hoffmeister
Experts: Barkman, Logan,
