EI Dupont de Nemours & Co. v. Faupel

Decision Date30 January 2004
Docket NumberC.A. No. 03A-04-014-RRC.
Citation859 A.2d 1042
CourtDelaware Superior Court
PartiesE.I. DUPONT DE NEMOURS & CO., Employer Below-Appellant, v. Barbara FAUPEL, Claimant Below-Appellee.

Robert W. Ralston, Esquire, Wilmington, Delaware, Attorney for Employer Below-Appellant.

Joseph W. Weik, Esquire, Weik, Nitsche, Dougherty and Componovo, Wilmington, Delaware, Attorney for Claimant Below-Appellee.

OPINION

COOCH, J.

I. INTRODUCTION

This is an appeal of a decision of the Industrial Accident Board ("IAB") holding that Barbara Faupel's ("Faupel") injury, Guillain-Barré Syndrome/chronic inflammatory demyelinating polyneuropathy, which resulted from an influenza vaccination administered to her by her employer E.I. duPont De Nemours & Co. ("DuPont"), was within the course and scope of her employment and therefore compensable under the Workers' Compensation Act. This Court finds that there was substantial evidence to support the IAB's decision and affirms the decision of the Board. This Court holds that a flu vaccination, resulting in injury, "may be covered [by the Workers' Compensation Act] if there is a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations."1 This is an issue of apparent first impression in Delaware.

II. FACTUAL AND PROCEDURAL HISTORY

Faupel was employed by DuPont from March 1970 until October 29, 2001.2 In 2000, Faupel was promoted to an "executive" level position and moved to DuPont's offices in the "Hotel DuPont".3 In 1976, Faupel had received the Swine Flu vaccination, which was administered at work by DuPont, and she became ill after receiving the vaccination.4 Faupel declined to receive any flu vaccinations between 1977 and 2001.5 Faupel testified that she decided to receive the flu vaccination in October 2001 because she felt that in her new position she needed to be "on the job" for her boss.6 She also stated that her family doctor suggested that she get a flu vaccination because of her age and because she was also caring for elderly parents.7 Faupel received a flu vaccination, administered by DuPont, on October 18, 2001.8

DuPont's medical health department, where Faupel received her vaccination, has provided occupational health services to employees and a limited array of non-occupational medical services.9 DuPont has offered flu vaccinations every year to employees who wish to receive the vaccination.10 There were no incentives or requirements that employees receive the vaccination and the program was provided as a convenience to employees.11

DuPont informed employees about the vaccination program through flyers and bulk e-mail messages.12 Faupel testified that there were posters announcing the vaccination program posted at eye level by the restrooms, in the photocopier room, in her department, by the elevators and going "in and out of the work area."13 Some of the posters, she testified, encouraged people to get the flu shot "while supplies last."14 One e-mail read,

FLU SHOT SCHEDULE!!!!

Flu shots will be given at the Chestnut Run Medical Clinic located in Bldg. 700 on the following days and times:

Friday, October 26, 9:00am to 11:00 am, and 1:30pm to 3:00pm

Monday, October 29, 9:00am to 11:00am and 1:30pm to 3:00pm.

Future flu shot dates will be announced based on our supply of vaccine.15

Employees in Faupel's department were scheduled to get their vaccinations on October 24; however, Faupel testified that on October 18, Clava Queenan, the secretary from the DuPont medical department, offered her the opportunity to receive the vaccination early because Faupel was working with "upper management."16

Everett C. Sparks, R.N., a DuPont employee, administered the vaccination to Faupel during regular work hours in the DuPont building.17 Sparks testified that a vaccination is a preventative measure, it can reduce absenteeism at work and in addition to being a preventative measure, he testified that employer provided vaccinations promote good employee relations.18 Sparks stated that when an employee gets the flu, he or she could be out of work for up to two weeks.19

Faupel began to feel ill about a week after receiving the vaccination.20 Faupel initially sought medical treatment from DuPont's medical health department but was eventually referred to her family doctor.21 Faupel went to the hospital because of the continuing deterioration of her condition, which included numbness and partial paralysis in her lower extremities; eventually, Faupel suffered complete paralysis from the waist down.22 After several months of rehabilitation, Faupel regained the use of her legs; however as of the date of the IAB hearing, she continued to have no feeling in her legs and used crutches or a motorized scooter to get around.23 Faupel was diagnosed with Guillian-Barré Syndrome/chronic inflammatory demyelinating polyneuropathy ("CIDP").24

Faupel filed a petition with the IAB in November 2002 to determine compensation due alleging that her condition was the result of the vaccination she received at work. She sought compensation for ongoing total disability and payment of related medical expenses. DuPont disputed whether Faupel's CIDP resulted from the vaccine and whether it provided the vaccination within the course and scope of her employment.25

III. STANDARD OF REVIEW

The Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence.26 Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.27 The appellate court does not weigh the evidence, determine questions of credibility, or make its own factual findings.28 The reviewing Court must view the facts in a light most favorable to the party prevailing below;29 therefore, it merely determines if the evidence is legally adequate to support the agency's factual findings.30 When factual determinations are at issue, the reviewing Court should defer to the experience and specialized competence of the Board.31 If the decision is supported by substantial evidence, the Court must affirm the decision of an agency even if the Court might have, in the first instance, reached an opposite conclusion.32

IV. DISCUSSION
A. The IAB's Findings of Fact and Conclusions of Law.

The IAB correctly determined that in order for Faupel's injury to be compensable it must meet a two-pronged test. The injury must "arise out of" the employment and it also must be "in the course of" employment.33 The IAB also concluded that an injury cause by a vaccination would be compensable beyond a situation where an employer compels or requires an employee to receive a vaccination. The IAB stated that "[w]hen the inoculation is not thus strongly tied to the employment ..., it may still be covered if there is a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations."34

The IAB analyzed "in the course of employment" as referring to the time, place and circumstances of the injury.35 The IAB held that "in order to be compensable, the injury must have been caused in a time and place where it would be reasonable for the employee to be under the circumstances."36 The IAB found that an "employee does not have to be injured during a job-related activity to be eligible for workers' compensation benefits."37 Activities noted by the IAB that had been found to be incidental to employment included "eating, drinking, smoking, seeking toilet facilities and fresh air, coolness or warmth."38 The IAB found the vaccination was "in the course of employment" because "[i]t was administered during [Faupel's] normal work hours, her work place and by DuPont personnel."39 The IAB held that even if the vaccination was extended to Faupel as a convenience, as argued by DuPont, the injury was still within the course of employment.40 As to the critical issue of whether the injury "ar[ose]" out of Faupel's employment, the IAB utilized the test favored by Professor Larson, holding that an injury resulting from a vaccination "may still be covered if there is a combination of strong urging by the employer and some element of mutual benefit in the form of lessened absenteeism and improved employee relations.41 The IAB held that "[t]he term `arising out of employment' relates to the origin of the accident and its cause."42 The IAB also found that "it is sufficient if the injury arises from a situation which is an incident or has a reasonable relation to the employment."43 In order for the injury to arise out of employment, "there must be a reasonable causal connection between the injury and the employment."44

The IAB found that a "reasonable relation" existed between Faupel's employment and her receiving the vaccination.45 The IAB held that "[w]hile DuPont characterizes the flu shot program as a public health initiative, the evidence suggests otherwise. This program was not offered to the general public but it was a program only offered to employees. The IAB gave weight to the fact that the vaccination program was "a DuPont funded program administered by DuPont personnel at DuPont facilities to DuPont employees ... [and] not a case where an employer merely made some space available for an independent agency ..., to give flu shots to the public."46

The IAB found that DuPont had sufficiently encouraged employees to receive the vaccination such that it rose to the level of "strong urging."47 The IAB held that the "frequency of the reminders constitutes urging" and it found that the placement of the flyers in locations where they would be frequently seen and the fact that e-mails were sent directly to employees...

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  • Sticking Points Part 2: a Survey of Remedies for Vaccination Injuries
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