Petition for Review of a Decision of the District of Columbia Department of Employment Services
Before Wagner, Chief Judge, and Farrell and Washington, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
This petition for review challenges a decision of the District of Columbia Department of Employment Services (DOES) granting temporary total disability benefits to intervenor (hereafter Thielke). The principal issue raised, one of first impression in this jurisdiction, is whether an injury resulting from a pre-employment inoculation obtained as a condition of employment pursuant to local regulations can be deemed to have occurred in the course of employment under the District's Worker's Compensation statute. Petitioner also challenges the causal connection between the alleged injury and the inoculation. We uphold the decision of the Director awarding benefits.
The basic facts as found by the hearing examiner are not in dispute. Thielke was born in 1943. In 1960, he was injured in a chemical explosion that resulted in the loss of his left eye and part of the bone on his forehead, and that required brain surgery to remove a walnut-sized piece of his left frontal lobe. Otherwise, he recovered from the accident and, as the examiner found, "showed no focal deficit or increased cranial pressure and had no chills, fever periods of syncope [fainting] or headache, convulsions, or behavioral changes." Thielke graduated from college with a degree in economics and government, and in succeeding years held jobs as a compensation analyst and later in public administration. Except for rare instances of feeling faint, he testified that he had suffered no seizure disorders in the years following the accident up to 1992.
In late January 1992, Thielke was hired by Washington Hospital Center (WHC) as a compensation analyst. Scheduled to begin work on February 10, 1992, he was required as a preliminary to receive an MMR vaccination. He was given the vaccine on February 3, 1992, by WHC's health provider as part of his pre-employment physical exam. The inoculation was required by law for all hospital and clinic employees who routinely come in contact with patients or patient areas. 22 DCMR § 2103.4 (1998).
On February 5, 1992, Thielke had an experience lasting three hours in which he began washing a cup obsessively, developed delirium, blacked out, became disoriented as to time, place, and circumstance, and became extremely cold. His mother took him to the hospital but brought him back home because he had regained his mental equilibrium before being seen by emergency room personnel. Over the next two days he complained of being extremely hot or extremely cold, and of fatigue and inability to sleep; he developed a red blotchy rash on the left side of his face, which he had never had before. During these days, he also felt as if his heart was pounding and racing, and experienced alternating fever and chills. He reported to work for WHC the following Monday, and was sent to the employer's occupational health office. He left the occupational health office and walked across the street to be seen by Dr. Neil Kurzrok, a neurological specialist, who performed a series of tests and ordered an MRI examination.
In November of 1992, Thielke passed out while taking a shower. In March of 1993, he passed out at the copying machine at work, and did not wake up until he was in the emergency room. Approximately a week later, while driving home from work, he had a seizure, lost consciousness, and had an automobile accident in which he sustained injuries. Between November of 1992 and March 31, 1993, he had four episodes of loss of consciousness. In May of 1993, he came under the care of Dr. Albert Galdi, a certified neurologist. He had a complex partial and grand mal seizure, fell, and broke his clavicle in July of 1993. In September of 1993, Dr. Galdi released him, with no medical restrictions, to return to full duties with WHC.
Despite his return to work, Thielke continued to have occasional episodes of passing out without warning while engaged in normal activities such as walking, working, shaving and talking. Dr. Samuel Potolicchio, another neurologist, prescribed medication for these seizure episodes. During those periods when he was not having seizures, Thielke was able to perform his usual work duties with no restrictions or limitation. When Dr. Galdi recommended that he see a neurologist with expertise in seizure disorders and epilepsy, Thielke went to neurologist Francis C. Mayle, M.D., for a consultation in March of 1994. Between late August of 1992 and the workers' compensation hearing in February of 1998, Thielke altogether had more than thirty-nine seizure episodes that included deliriums, complex seizures, grand mal seizures, faintness, passing out, and sweaty seizures.
WHC contends as a "threshold" matter "that there was no employer-employee relationship [between WHC and Thielke] on February 3, 1992, when he received the MMR vaccine and that the pre-employment vaccine was not an event that arose out of and during the course of his employment with [WHC]." Pet. Br. at 6. WHC first argues that Thielke was not an "employee," D.C. Code § 32-1501 (9) (2001), at the time of the inoculation because he had not yet reported to work. The hearing examiner found, to the contrary, that Thielke had been hired -- i.e., he was an employee -- subject only to the requirement that he be vaccinated before starting the job. That finding is fully sustainable, particularly since the inoculation was administered by WHC's own health care provider.
WHC further argues that the inoculation and any resulting injury did not "aris[e] out of and in the course of [the] employment," D.C. Code § 32-1501 (12) (2001), again because Thielke had not begun actual work. We disagree. Section 32-1501 (12) embodies the positional-risk standard, by which "an injury arises out of [the] employment so long as it would not have happened but for the fact that conditions and obligations of the employment placed claimant in an position where he was injured." Clark v. District of Columbia Dep't of Employment Servs., 743 A.2d 722, 727 (D.C. 2000) (emphasis in original; citation omitted). Applying "this . . . 'liberal' standard," id., the Director found the necessary work connection and so do we. But for his employment Thielke had no obligation -- nor, for all the record shows, any inclination -- to obtain the vaccination; he was inoculated, as the Director reasoned, "at the behest of the employer" and, moreover, "to further the interests of [an] employer" who obviously benefitted from having employees such as Thielke immunized against diseases communicable in the hospital setting. WHC argues, nevertheless, that the requirement of vaccination was not its doing, but rather imposed by law, see 22 DCMR § 2103.4: "just as Thielke had no choice in the matter, neither did the Hospital," WHC states, and it is unreasonable for an employer "to be held liable, for workers' compensation purposes, when it simply abides by the local police powers of the District of Columbia" and before entering on duty, that person is injured "during this government mandated medical procedure." Pet. Br. at 10.
In rejecting this argument, the Director adopted the view of Professor Larson that asking whether the employment alone caused the ...