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This case involves two dates of accident that have been consolidated into a single matter. At the time of her accident, the claimant was employed as a clinical coordinator. 

The claimant received a required flu vaccine on October 29, 2019. Medical records indicate that she was initially treated by her personal physician on December 12, 2019, when she complained of having some numbness and tingling bilaterally in her feet that she had noticed “recently.” She also complained of weakness and tripping and was referred to a neurologist. 

On February 11, 2020, the second date of accident, the claimant was at work and was responding to an alert of a stroke victim when she fell while walking. She returned to her personal physician on February 27, 2020, and reported that she was having difficulty walking and that the problem began five months earlier, which would pre-date the flu vaccine. She underwent diagnostic testing and was referred to a rheumatologist.

She saw the rheumatologist on June 23, 2020, where she complained of paresthesias and weakness of the bilateral lower extremities. That report indicated symptom onset approximately October 2019, after she received the flu vaccination. This is the first medical note suggesting a potential relationship between the flu vaccine and her condition. In July 2020, the claimant was seen by neurologist, where she where reported no immediate reaction to the vaccine. A nerve conduction study showed evidence of severe polyneuropathy. She was diagnosed with Guillian-Barre syndrome (GBS).

The claimant’s IME physician opined that she had chronic polyradiculopathy and GBS was not properly treated. The employer/carrier’s IME physician disagreed with the diagnosis of GBS and felt she had some type of severe, chronic polyneuropathy, perhaps due to her gastric bypass surgery, which can result in thiamine or copper deficiency. He concluded that the claimant’s condition was unlikely related to the flu vaccine.

The judge of compensation claims did a very thorough analysis of GBS and found that the claimant’s timing of the vaccine versus the timing of her symptoms did not correlate with the medical evidence. The judge also analyzed Daubert objections made by both parties. 

There was no dispute that the claimant did not advise the employer of her alleged injury within 30 days of October 29, 2019, but the claimant argued that she did advise them within 30 days after she received a medical opinion that her condition was possibly related to the flu vaccine. The judge held that June 23, 2020, was the date on which the claimant first learned of a possible relationship. There was a dispute as to when she advised the employer thereafter. The claimant said that she told her supervisor in July 2020. The supervisor disputed notice and testified that the claimant had not told her anything about her condition being related to the flu vaccine. The supervisor testified that the claimant told her that her symptoms may be due to her previous bariatric surgery or a vitamin deficiency. The judge denied compensability of both alleged dates of accident.

The claimant appealed the judges’ final order. On February 22, 2023, the First District Court of Appeal issued a per curiam opinion indicating that there was competent, substantial evidence to support the judge’s finding that the claimant did not give timely notice of her injury, and the judge’s order was affirmed.

_{What’s Hot in Workers’ Comp, Vol. 27, No. 4, April 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}