Sunday, January 2, 2022

Pennsylvania Court Upholds Award to Worker who Sustained Injury due to Flu Shot (Home Depot, 12.23.2021)

           The Commonwealth Court of Pennsylvania (an intermediate appellate court) held, on December 23, 2021, that the WCJ, 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.  That expert, the court stated, did not rely on a hypothetical without a basis in the record, nor did he rely alone, and in in 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, WCJ, and court all took for granted, correctly, than 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), medically-related thereto.  Under the Pennsylvania Act, an "injury" is any adverse and hurtful change sustained by an individual. 

Home Depot USA, Inc. v. Noorami (WCAB), No. 113 C.D. 2021, filed 12.23.2021, 2021 WL 6069521 (Unreported, Pa. Commw. 2021).

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