By: Rich Lenkov, Michael Milstein & Chase Gruszka
On 4/13/20, the Illinois Workers’ Compensation Commission issued an Emergency Amendment to the Rules of Evidence:
“In any proceeding before the Commission where the petitioner is a COVID-19 First Responder or Front-Line Worker… if the petitioner’s injury or period of incapacity resulted from exposure to the COVID-19 virus during a COVID-19-related state of emergency, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s…employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposure of the petitioner’s…employment.” 50 Ill. Adm. Code 9030.70(a)(1) (emphasis added).
“COVID-19 First Responder or Front-Line Worker” is defined as:
- Fire personnel
- EMTs or paramedics
- All individuals employed and considered as first responders
- Health care providers engaged in patient care
- Correction officers
- “Crucial personnel” identified in Governor JB Pritzker’s Executive Order 2020-10, employees of:
- Grocery stores
- Food, beverage, cannabis production and agriculture
- Charitable organizations and social services
- Gas stations
- Businesses needed for transportation
- Financial institutions
- Hardware and supply stores
- Critical trades
- Mail, post, shipping, logistics, delivery and pick-up services
- Educational institutions
- Laundry services
- Restaurants for consumption off-premises
- Supplies to work from home
- Supplies for essential businesses and operations
- Home-based care and services
- Residential facilities and shelters
- Professional services
- Day care centers for employees exempted by the Order
- Manufacture, distribution and supply chain for critical products and industries
- Critical labor union functions
- Hotels and motels
- Funeral services
At his Monday news conference, Gov. Pritzker was asked whether it’s fair for employers to bear the tremendous financial burden that this rule change will impose. Pritzker said “in the middle of an emergency, the only way that you have to operate is to protect people as best you can… and to the extent that it’s required that someone has to pick up the tab for that, sometimes it will fall on the people who are most able to pick up the tab.” Of course, what Pritzker is failing to address in that statement is that Illinois businesses—many of which are small—are already facing devastating losses as a result of the pandemic. These businesses cannot simply afford to “pick up the tab” that this historic expansion of workers’ compensation claims will impose.
- This Rule represents a dramatic change in a petitioner’s burden to prove all elements of their cause of action, significantly the crucial elements of accident and causation. The burden now shifts to the employer to prove by a preponderance of evidence why COVID-19 was not caused by work.
- It is notable that this change was enacted as an “Emergency Rule,” with less than 24 hours’ notice, rather than an amendment to the Illinois Workers’ Compensation Act. Many other states that have made similar changes to their workers’ compensation burden of proof have done so through the legislature, with the standard deliberative process and checks and balances that goes along with that (albeit on far more expedited bases given the pandemic). The fact that the change was made as a rule change, and that it may violate the Illinois Open Meetings Act, is disturbing and raises serious due process issues.
- This Rule change specifically refers to “proceeding before the Commission” and “Petitioner.” Applying a strict interpretation to those words, which is the default analysis absent any other evidence, one must presume that this rule change does not apply to any employee who has not yet filed an Application (which begins the litigation process). In other words, “a proceeding before the Commission” only starts when an employee files an Application, moving an employee from a mere workers’ compensation claimant to a “petitioner.”
- Nothing in this rule change affects an employee’s burden to prove that their condition actually is COVID-19, rather than another condition with similar symptoms.
- Nothing in this rule change alters the fact that it is a petitioner’s burden to prove that COVID-19 resulted in any significant permanent and partial disability.
Practice Tip: It has now become much easier for a substantial number of Illinois workers’ compensation petitioners to prove a COVID-19 case. However, easier does not mean that you should accept every claim. The presumption is rebuttable for a reason: employers can still present evidence that work did not cause or aggravate the virus. For that reason, it’s even more important than ever to promptly and thoroughly investigate any COVID-19 claims and be sure to:
- Report it to your insurance carrier/TPA right away;
- Confirm the COVID-19 diagnosis and when symptoms began;
- Determine if the employee had contact with a person infected with COVID-19 and if so, document the contact;
- Determine if family members are exhibiting similar symptoms or have been diagnosed with COVID-19;
- Document any information related to a higher risk of exposure for this specific employee and the nature of that exposure (e.g., healthcare worker or first responder).
April 14, 2020 Posted by DL Firm ArticlesShare This