Don't Forget PREP Doesn't Preclude Workers Comp Claims

When the new round of mandates come, and they will, throw this back at 'em

The PREP Act’s CICP may not be your only avenue if you suffered an injury from an employer-mandated COVID-19 vaccine. Federal Workers are in a separate category.

Workers Comp has its own Statutes of Limitations for different states (so please contact a qualified Workers Comp attorney).

Although the information may be a little too detailed for a Short Stack, consider this a Sunday Brunch. Ray

FECA BULLETIN NO. 22-01 October 1, 2021

Subject: Coverage for Injuries Resulting from the COVID-19 Vaccination Mandate for Federal Employees.

4. If the employee is covered by the executive order and vaccination was received on or after September 9, 2021, coverage may be afforded for (1) adverse reactions to the COVID-19 vaccination and (2) injuries sustained as the direct result of an employee receiving their mandated vaccination.

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Originally published in the Defender

Workers’ Compensation: A Pathway to Immediate Relief for COVID Vaccine Injury Victims?

In interviews with The Defender, three lawyers discussed workers’ compensation strategies that may help private-sector employees who sustained COVID-19 vaccine injuries obtain financial relief.

by Michael Nevradakis, Ph.D.

November 16, 2022

Could employees injured by a COVID-19 vaccine that was mandated by their employer get relief under the U.S. workers’ compensation program?

Some lawyers think so — including three who spoke with The Defender about specific workers’ compensation strategies that may help private-sector employees who sustained COVID-19 vaccine injuries obtain financial relief.

The attorneys also suggested that the more people file claims for their COVID-19 vaccine injuries, the more employers — and their insurers — may feel pressure to reconsider employer-mandated vaccines in the future.

Noting that the number of workplace disability claims in the U.S. increased in early 2021 — the same time COVID-19 vaccines were rolling out — lawyers interviewed for this story detailed the steps involved, the benefits that may be available and the potential hurdles claimants may face, and how to overcome the challenges of locating a suitable attorney and doctor to assist with the claims.

In the U.S., the workers’ compensation program — available in all 50 states — provides an option for employees of companies and businesses that mandated COVID-19 vaccination.

Filing a workers’ compensation claim doesn’t preclude an employee from filing claims via other legal channels. But it does provide the potential to receive immediate financial relief and medical treatment and also, possibly, long-term support.

Workers’ compensation provides possible recourse for vaccine-injured workers

The three attorneys — Ben Carlisle, Ray L. Flores II and Patrick R. Hollingsworth — are experienced in legal areas of relevance to those injured by the COVID-19 vaccines. Carlisle and Hollingsworth’s firms specialize in workers’ compensation claims, while Flores is experienced in issues of health freedom rights.

Flores told The Defender that workers’ compensation is “a much easier system to navigate” than the PREP Act (Public Readiness and Emergency Preparedness Act) of 2005 or the National Childhood Vaccine Injury Act of 1986, which are the traditional avenues to submit claims related to vaccine injuries.

Flores said the PREP system is “impossible to get through,” which has led to a situation where “everybody thinks there’s nothing that can be done.” However, he said, “I’ve cited in several places [that] PREP does not preclude workers’ compensation.”

In an Aug. 24 interview with CHD.TV’s “Good Morning CHD,” Hollingsworth said this means that “if you were mandated to take the COVID vaccine as a condition of employment and you were injured, you are entitled to file a workers’ compensation claim.”

Carlisle noted that the two legal avenues are “not mutually exclusive, it’s not one or the other,” but that workers’ compensation claims are “an avenue that’s a lot easier right now.”

Carlisle also pointed out that workers’ compensation “is a no-fault system” in states like New York, where he is licensed, “so there are a lot fewer hurdles you have to jump through.”

Carlisle said “no-fault” means that employers can’t hide behind claims that the government compelled them to issue a mandate:

“That’s not a defense … It’s no-fault. I don’t have to prove it’s anyone’s fault. I don’t have to prove Pfizer was negligent. I don’t have to prove the employer was negligent.

“All I have to do [is] to prove that they were within the course and scope of their employment and they got injured and that their vaccination relates to that injury. That’s it.”

Hollingsworth, in a May 23 presentation, explained that employees also can file workers’ compensation claims in situations where, even without an explicit mandate, an employee faced “coercion, exclusion, discrimination,” where they were “ostracized by their co-workers or it was strongly suggested that they get the vaccine.”

“I believe you would be able to show … causation there, whether your employer requested you to have it, mandated or not,” Hollingsworth said.

Many different types of injuries can be considered work-related, as long as “employment is the main factor that exposes him or her to the situation that caused the injury,” Hollingsworth said, adding that some states, such as California, often liberally construe facts in favor of the injured worker.

Hollingsworth also said case law has often recognized compensation for aggravation of “pre-existing non-industrial issues related to … vaccination,” such as if the vaccine “aggravated a pre-existing autoimmune disorder or pre-existing heart condition.”

Employees also sometimes can make claims of psychological and emotional distress.

“You’re allowed treatment and in other cases, additional compensation for any psychological damage as a result of said injuries,” Hollingsworth said. “If you’re having any kind of physical reaction to a vaccination, like an anaphylactic shock or any other kind of subsequent injury, we could even go as far as to allege emotional distress.”

He added:

“Many [claimants] didn’t want to get the vaccination and were told they were going to be terminated. It caused severe emotional distress for them to have to choose between injecting themselves or not wanting to take the shot.”

Cumulative adverse health effects, such as “a large buildup of toxicity,” resulting from multiple vaccinations and boosters also could form the basis for a claim, said Hollingsworth in the May presentation, as could secondary injuries, such as falling and getting injured after fainting, if the vaccination caused the initial fainting.

Carlisle told The Defender, “This is a workers’ compensation claim … it’s not a lawsuit. It’s a claim for benefits that you’re entitled to. That’s why you don’t have to prove negligence. You don’t have to prove fault. Anything you do in workers’ compensation will not exclude you from pursuing other avenues of justice.”

Hollingsworth said such claims are “just starting to roll in” as “people are becoming aware of their rights under workers’ compensation.”

Carlisle, who filed two such cases, said soon after mandates were implemented, he had tweeted a warning to employers that they might be liable for workers’ compensation claims in the future. “At the time, I think 10 people saw [that tweet],” he said.

However, “a million people have viewed” his Nov. 4 tweet about his first workers’ compensation hearing against an employer-mandated vaccine: “The judge found sufficient evidence to proceed. Trial set for January.”

Conversely, navigating other avenues of justice has proven challenging for the overwhelming majority of claimants.

Describing it as “a dead end,” Flores told The Defender there have been only six claims approved for payment under the CICP, or Countermeasures Injury Compensation Program. All of them were for vaccine injuries, and payment in all cases is pending a review of eligible expenses.

Appearing on CHD.TV in August, Flores said, “Workers’ compensation is considered your primary avenue at the beginning of a work-related vaccine injury … the PREP Act is considered a last resort.”

The standard of evidence is much higher in PREP Act cases as compared to workers’ compensation cases, Flores said.

“PREP cases can only be filed in Washington, D.C., District Court in the event of serious injury or death and when willful misconduct can be alleged,” Flores said.

However, before you can file a lawsuit in district court, you have to first file a claim with the CICP, then wait 240 days. If you reject the CICP offer, or don’t hear back, then you can file in D.C. District court — but only if there is serious bodily injury or death and you can prove willful misconduct.

Flores said the PREP Act covers COVID-19 vaccine injury claims, as this act “is only for emergency medical countermeasures.” He added, “so everything falls under the PREP Act if there’s any injury.”

This makes a workers’ compensation claim more attractive for most vaccine injury victims, Flores said. “If you file a workers’ compensation claim, not only does the claim get started, there are initial payments that start being made right out of the gate.”

Hollingsworth said he and other workers’ compensation attorneys “work on contingency, so it doesn’t cost anything to file.” He told CHD.TV viewers in August that it’s a “no-lose situation” for applicants.

“The attorneys taking the case, at least here in California, charge anywhere between 15-18%, sometimes up to 20% at some firms if it’s a very complex case that drags on, but usually it’s 15%,” Hollingsworth said. “There’s no upfront fee, there’s no filing fee, there’s no cost deducted from your recovery. It’s all paid for by the insurance carrier. So there’s really no reason not to file [a claim] if you’re injured.”

File workers’ compensation claims as quickly as possible, attorneys say

Hollingsworth told The Defender that, in many states, such as California, potential applicants have one year from the date of knowledge of their injury to file a claim with their employer. In New York, however, the statute of limitations is two years, Carlisle said.

In his May presentation, Hollingsworth explained the importance of filing workers’ compensation claims early. “You want to file a claim immediately. Oftentimes, many issues come up as to communicating your injury to your supervisor or as a liability issue. If you don’t communicate the injury right away … it could be a basis for denial.”

This is applicable even in cases where the adverse effects following vaccination are minor, as this may still help a future claim.

“Most people suffer just soreness in the arm or swelling or redness,” Hollingsworth said. “If you’re having any of those, I would probably advise filing something just to get it acknowledged immediately that there was an issue, so that if there is a more significant injury further down the road, at least acknowledge that you had a reaction at the outset of any kind.”

According to Carlisle, this is because most states specify a shorter period of time to report injuries to an employer:

“In New York and … probably a lot of states, you’ve got 30 days to provide notice of the injury. That doesn’t mean you’re bringing a claim. It just means you’ve got to tell your employer, ‘I took this shot, you made me take it, and now I’m missing time from work.’ That satisfies your notice requirement.”

Carlisle said it’s best to provide notice in writing, and there are other advantages to promptly reporting an injury to employers.

“If the employer pays what we call an advance payment of compensation, if they pay for your lost time or they pay for your medical, then that tolls the statute,” meaning that the statute of limitations is frozen, Carlisle said.

According to Hollingsworth, employers are required to disclose information about workers’ compensation to employees when an injury is reported:

“If you bring it up to your employer … and the employer tells you to pound sand and they don’t provide you the requisite claim form that they’re required to under the law, that tolls the statute of limitations.

“It’s usually very easy to overcome the statute of limitations in workers’ compensation. That doesn’t mean you should sit on your rights forever. But it shouldn’t be a deterrent from at least attempting to bring a claim.”

Workers’ compensation cases move faster than civil litigation

Speaking to CHD.TV in August, Hollingsworth said the average workers’ compensation case lasts between one-and-a-half and two-and-a-half years. Cases sometimes run longer though, “especially if there’s a lengthy course of medical history.”

Cases can sometimes be processed quickly, however. Carlisle said his first COVID-19 vaccine injury client came to him in September, and the first hearing in that case was held a month later.

He described the typical process:

“If it’s controverted, you’re going to be in front of a judge within about a month. If you don’t show medical, the board’s not going to schedule a hearing until you have a medical report that says ‘this individual was injured and I think it’s related to X.’ It’s a pretty low standard. The standard is sufficient medical to proceed.

“If you have sufficient medical to proceed, you’re going to get in front of a judge. The judge will then direct the insurance carrier to get their own opinion [within 30-45 days]. If their doctor says that it’s related, then we’re done … But if their doctor says it’s not related, then we depose the doctors. That takes another couple of months. Then we get a decision from a judge.”

After this, said Carlisle, an appeals process may follow.

“If either side wants to appeal, you could be waiting up to a year for the board panel to give you a decision. And if either party wants to appeal that to a full board panel, you’re looking at another six months to get that second decision.”

Further appeals could add six months to a year.

“I’d say at the far end, you’re looking at about 18 months before you’re going to get a final decision from the full board. But oftentimes people stop even just at that, the regular board panel level.”

During this process, claimants are entitled to benefits, Hollingsworth told CHD.TV:

“Workers’ compensation is administrative law, so there’s no jury trial, it’s all bench trials. You litigate in front of an administrative law judge. You’re entitled to certain benefits, and they’re pretty much the same in every state: you can receive medical treatment to cure or relieve the illness or injury that you have.

“Once your claim is accepted, that’s paid for by the workers’ compensation insurance, you’re entitled to two years of temporary disability in California [but] that may vary by state.”

In his May presentation, Hollingsworth outlined the early stages of the legal process:

“[There’s a] claim form that gives employers legal notice that you are filing a work injury claim, which starts tolling some of the time limits for investigation, denial, delay … In California, we have a 90-day period to investigate the claim.

“Once the form is received, employers and insurance must provide initial treatment of up to $10,000 while the investigation takes place and/or until the claim is denied or delayed. Oftentimes, there’s an employer-level investigation … If their claim is denied or delayed, we have what’s called the agreed medical evaluation.”

Hollingsworth also described the medical process:

“There’s a medical-legal process whereby a doctor determines causation. If your case is denied, you can pick any treating physician you want to evaluate you and give a medical opinion as to whether the vaccination caused your injury or not.

“Then there’s … a qualifying medical evaluator process … where the parties select a state-appointed doctor in a particular specialty — we’re trying to use allergy medicine doctors here, internal medicine doctors — and they write a medical-legal report to establish what caused the injury, the nature of the injury.”

According to Carlisle, the compensation received during this period would cover any medical expenses related to the injury:

“Anything that’s a consequence of the initial injury would be covered medically. So those are the benefits that you receive in [workers’ compensation cases] … Any kind of treatment that’s related to your claim, the insurance carrier pays 100%. There’s no out-of-pocket expenses for the claimant.

“And if something develops down the road that’s a consequence of the original injury, like say you were on your way to a medical appointment and you got in a car accident, they consider that a consequential injury. Then anything that happened in that car accident is a consequence.”

Lost time from work is also covered during this period, said Carlisle.

“Any time you have to lose time from work because of your injury, you’re entitled to lost time,” he said. “There’s a formula to figure out how much you get paid, but it’s all based on what you were getting paid when you were working.”

Hollingsworth told The Defender that temporary disability payments are also made during this period:

“Most states have a temporary disability program for up to 104 weeks. So you get two years of temporary disability. So if you can’t work or if you had to retire or you’re so sick that you can’t work, you’re entitled to two years of temporary disability, which [in California] is two-thirds of your wages to a maximum of $1,500 a week … tax-free for up to two years while you’re dealing with your injury or until a doctor declares that you’ve reached your maximum medical improvement.”

In his May presentation, Hollingsworth said this period could be extended:

“You can’t get it longer than 104 weeks [unless] you have … a severe condition … we have passed exceptions for amputations, chronic or severe conditions, hepatitis B and C — which has been shown to possibly be caused by vaccination — severe burns, HIV, eye injuries, chemical burns and pulmonary fibrosis.”

Also, depending on the circumstances, temporary disability can ultimately lead to the issuance of a permanent disability benefit.

“Permanent disability is a percent of your whole-person impairment,” Hollingworth said. “If you have 70% permanent disability and above, this would possibly qualify you for a life pension. When you get a final report from all the doctors, you’re going to get a permanent disability rating for your injuries.”

These permanent disability benefits may cover new health issues that arise in the future. “If you need medication for your heart to continue working or you need a heart transplant down the road or something, this is something that they’re going to be on the hook for,” Hollingsworth said.

Carlisle noted that, in New York at least, there also is the possibility to settle the case, where both parties would then “look at the lifetime value of the claim” and then “either close out the indemnity, or just the medical or just the indemnity or both, and in that case, claimants would be looking at a lump sum recovery … by virtue of a settlement.”

Families who lost a loved one because of vaccine injury, where the vaccine was mandated by the employer, may apply for workers’ compensation death benefits, Hollingsworth said.

In California, the death benefit is $320,000 for an individual with two dependents, and $250,000 for an unmarried person with no dependents.

In his May presentation, Hollingsworth said that in California, this benefit is paid out as “two-thirds of your average weekly wage” but “oftentimes people want to settle for a lump sum, depending on the nature of the case, which is often discounted at present value.” He added that families would be “entitled to funeral and burial expenses.”

According to Hollingsworth, “Every state has workers’ compensation laws and employers are required by law in most states to have workers’ compensation insurance” and “it is illegal for employers to discriminate based on work injury.”

Claimants concerned that their employer will retaliate if they file a claim have protected status under the law, Hollingsworth told CHD.TV in August:

“Retaliation is oftentimes something we see that people are hesitant to file their workers’ compensation claims because they are afraid their employer is going to then terminate them. If they do that based on your workers’ compensation filing status as an injured worker, they would be subject to a wrongful termination lawsuit, a discrimination lawsuit as well on top of that, whereby you can get reinstated to your job if you get terminated.”

For federal employees, there is a separate federal worker’s compensation system. “The federal government is a little bit more difficult to navigate and less likely to be successful [because] they’re the ones mandating it all,” Hollingsworth said, “and finding an attorney for that unfortunately is going to be difficult.”

For state and local government employees, some localities may be self-insured and handle their own claims, in which case “they’re entitled to the same benefits you would get if you worked for a private entity,” he said.

How do you find a suitable attorney for your workers’ compensation claim?

Hollingsworth, speaking to CHD.TV in August 2022, emphasized the importance of hiring an attorney who specializes in workers’ compensation law, stating “You want to really make sure that they only specialize in workers’ compensation, as other attorneys aren’t really familiar with how workers’ compensation works.”

During the same broadcast, Flores said that such firms typically accept most cases. “One of the good things about finding a firm is that workers’ compensation — as opposed to other types of law — chances are the firm is going to take your case,” he said, “although with the vaccine injury, there may be a bit of a hurdle to jump over.”

In the same broadcast, Hollingsworth also advised the public to ensure that, during any workers’ compensation hearings, “an attorney is handling your case and not a hearing representative,” noting that vaccine-related cases are “contentious” and require “someone that knows the law, that’s experienced.”

Flores referred to legal resources compiled by Children’s Health Defense, including locating attorneys in their state who handle workers’ compensation cases (see attorney search engine, find legal help and find a lawyer by practice area and state), and also emphasized the importance of educating lawyers on such issues, telling The Defender:

“The more information that we have available to the injured party or to the attorneys, then that will reverberate so that they’re not going to turn away the business. That’s another benefit of what we’re trying to do, to educate the lawyers as well.”

What about finding a doctor to back up your claim?

A significant obstacle often reported by vaccine injury victims — including some interviewed by The Defender — is locating a doctor willing to draw a connection between their symptoms and their vaccination in their diagnosis.

Carlisle told The Defender, “That’s going to be the biggest hurdle, just finding those doctors.” The second “tricky part,” he said, is that “they have to be licensed by the Workers’ Compensation Board in order to get reimbursement from the insurance carrier.”

Hollingsworth also recognized this obstacle but said he believes the tide is changing. He told CHD.TV in August:

“In terms of workers’ compensation … there are a lot of doctors who are afraid to come forward who do believe in what we’re doing, but that’s changing. Even doctors that are skeptical, who were on the other side, are seeing such an influx of young injured people coming to their practices, especially the internal medicine doctors, the heart doctors … we’re seeing a changing of the tide.”

Statistics from the Bureau of Labor Statistics (BLS) and the Federal Reserve Bank of St. Louis support Hollingsworth’s assertion that there is a growing number of vaccine injury victims. The data indicate a significant increase in disability claims in 2021 and 2022.

The number of disabled individuals in the U.S. hovered between 29.974 million in April 2016 and 30.612 million in April 2017, while the number of disabled persons in the workforce ranged between 5.811 million in October 2015 and 6.335 million in June 2017.

By October 2021, these figures increased to 31.195 million and 6.987 million, respectively. And by October 2022, the figures were 32.819 million and 7.797 million.

According to American Progress, quoting BLS data, the number of non-disabled people in the civilian population and in the workforce decreased in 2021.

American Progress and other media blamed the increase in disabled workers on “long COVID,” but previous analysis featured by The Defender demonstrated that disability claims in 2021 and 2022 corresponded with vaccination peaks one to two months prior.

Educating doctors about vaccine injuries is key, Hollingsworth said:

“We have to help educate them to the risks associated with the vaccines, and I think that is going to take a little time and could be a difficult hurdle to overcome … Physicians do not want to admit that’s a potential possibility, although I am starting to get more people telling me that they are starting to acknowledge it.”

Hollingsworth highlighted state medical boards as an obstacle for doctors who recognize that some of their patients are vaccine-injured:

“Part of the reason why [doctors are] having a hard time is because of the medical boards that have been coming down against doctors speaking out about the COVID vaccines.

“We have in California here a law that passed saying that doctors can be disciplined for ‘COVID misinformation,’ whatever that means. Doctors are worried that they’re going to lose their license or have some kind of disciplinary action taken if they say that the vaccine caused an injury.”

However, Hollingsworth said he believes there are doctors who would be cooperative with patients who seek to file workers’ compensation claims.

“I think that as things move forward, there are more and more doctors that have no choice but to acknowledge what’s happening and will be advocates,” he said.

During his May presentation, Hollingsworth also advised those seeking to file a claim to visit an independent doctor instead of working with a doctor in major medical systems, such as California’s Kaiser Permanente, who “more likely than not is going to look for a way not to find [a claim] work-related for whatever internal political reasons.”

Hollingsworth also advised claimants to pay particular attention to their medical records, because “medical reporting is something that is so poorly done and can often be fatal to your case because of such negligence,” adding that once a mistake enters one’s records, “it’s hard to get it changed.”

Carlisle is compiling a list of cooperative doctors and invites others to join. “Doctors, if you’re willing to give an honest causal relationship opinion, please let me know. I’ll add you to the list of doctors people can find.”

Pressuring employers and insurers to discourage future mandates

For Hollingsworth, workers’ compensation claims serve a dual purpose: not only do they represent an effort to get a degree of compensation and justice for those who were injured by mandated vaccines, but they also are intended to pressure employers and insurers.

He said:

“Through some strategy of a mass filing of injury claims for workers’ compensation, hopefully it will get the attention of insurance companies and therefore employers.

“Large employers specifically will take notice if people start filing these claims and then hopefully maybe rethink some of the mandatory vaccination policies they may have if it hits them in the pocketbook.”

He added his hope that this pressure would lead them to reconsider future mandates.

Carlisle told The Defender:

“I’d like to show people that there are consequences for fascism. The merger of state and corporate power is something we should all be very concerned about. If you just go along with what the state tells you to do and then all of a sudden you’re the one holding the bag for the liability, I sincerely hope it’s a wake-up call.

“That’s absolutely the strategy here, to get people to stand up and assert their rights and to get employers to realize, ‘if I go along with this, if I don’t stand up to the government, if I impose these mandates myself, I’m opening up myself to liability that the government’s not going to indemnify me for, and certainly not Pfizer and certainly not Moderna.’”

According to Flores, the added benefit, regardless of the outcome, is that the employer’s workers’ compensation premiums are going to go up,” likely compelling employers to reconsider mandatory vaccination in the future.

Remarking on the possibility that employers, once hit with workers’ compensation claims and higher insurance premiums, will then turn around and sue the government or the vaccine manufacturers, Carlisle said this might be a possibility, in addition to lobbying efforts to develop a compensation fund.

Carlisle told The Defender:

“I’m going to think that they’ll absolutely try … I would say their chances of success against Pfizer and Moderna are probably not so great, but against the government, I think if there are enough people … that say, ‘hey, you guys did this to us, you put us in this position, you’re going to have to set up some kind of fund’.

“I anticipate, honestly, that lobbyists are going to go to [the state] and they’re going to [lobby for] some kind of vaccine injury fund to compensate all these people that were required to take the jab by virtue of governmental mandates.”

Ultimately, we are in “uncharted waters” according to Hollingsworth, who said the workers’ compensation system has never been tested on a “vaccination that’s being forced en masse upon employees.”

He told CHD.TV that, as a result, “Especially at the outset, these are going to be hard-fought cases because the ramifications of a mass filing of workers’ compensation claims with severe injury is going to be devastating to these employers and insurers.”

Hollingsworth told The Defender that this process “is going to take time” but as “more people are communicating . . . , the more people start to suffer from injury, over time I think you’re going to see an increase in people filing.”

However, one of the most difficult obstacles to overcome, he said, is “human cognitive dissonance,” as “we have an idea of what vaccinations are … and that they’re safe and effective. The rhetoric has been pounded into people’s heads for so long where you’re having to overcome their own individual cognitive dissonance.”

He added:

“A lot of people aren’t sure if they were injured or not. They don’t know what’s causing it. The doctor gaslights them and tells them ‘it was something else’ … Don’t be afraid to second-guess the doctors or the information. Just keep reaching out until you find someone that knows what they’re talking about.”

The information provided does not, and is not intended to, constitute legal advice. All information, content and materials are for general informational purposes only. This may not constitute the most up-to-date legal information. Please contact a qualified workers’ compensation attorney in your state to obtain advice with respect to any work-related legal matter without delay.