Synopsis: Illinois Workers’ Compensation Commission Evidentiary Rule Change Part Deux… Or is it?

Editor’s Comment: As we reported in our prior update (article in blog link below), the IWCC Commissioners undertook a vote to effect an Emergency Amendment to the Rules Governing Practice which occurred on April 13th. Per the formal order, the effective date of that first Emergency Rule was April 13th.

For reasons which are not entirely clear, the full Commission re-convened (via teleconference) on April 15th and (again) passed a vote on the same or very similar evidentiary rule change, effective April 16th. In short summary, there is now a rebuttable presumption of work-related causal connection for exposure to Covid-19 for those workers performing essential functions pursuant Governor Pritzker’s order of March  20, 2020. As previously explained, this directive of the Governor offered a rather extensive list of workers considered essential, in sections 7 through 12 of the order. In short, if you are a business operating through this pandemic in Illinois, your workers are likely afforded this new (lower) standard of proof. We already expressed our concern that the IL WC Commission exceeded their authority with this evidentiary rule change, as any such change in a legal standard  of proof is an action properly reserved for the legislature with signature by the Governor to follow.

In comparing the two IL WC Commission rule changes (one voted on April 13th and the other April 15th), the only difference appears to be a clarification in the second order that this new evidentiary standard applies to all of the workers listed in Governor Pritzker’s March 20th order. The first rule change of the Commission on April 13th mentioned emergency “front line” workers and then made reference only to those other workers in section 12 of the Governor’s order. It is our impression that the purpose of the second Commission vote on April 15th  was to clarify coverage for all workers/professions identified in the Governor’s March 20th order viewed as “essential” and to clarify any open meeting rules.

One other important clarification was offered by the Chairman, which answers a number of questions we have been fielding as to an effective date. The Chairman clarified agreement with our position that the IWCC cannot create a retroactive rule. Therefore, the effective date of the rebuttable presumption will be for exposures/injuries occurring April 16, 2020 and moving forward. While we find the prohibition of retroactive application appropriate from a purely legal standpoint and agree with the Chairman in that regard, it also creates a rather unusual inequity for all those workers who have contracted Covid-19 before April 16th are not afforded this presumption of work-related causation. It remains to be seen how the IL WC Commission will assess Covid-19 exposure claims with dates of exposure alleged before April 16, 2020.  Those workers are clearly beholden to the traditional preponderance of the evidence standard and not afforded any presumption of work-related exposure.

THIS DOES NOT MEAN PRIOR DATES OF ALLEGATION MAY NOT ALSO BE COMPENSABLE–ONLY THAT CASES ALLEGED AS OCCURRING ON OR AFTER APRIL 16, 2020 ARE PRESUMED TO BE WORK RELATED.

Moreover, what of those workers in sections 7 through 11 of the Governor’s order not mentioned in the first rule change effected April 13th? Technically, the lower evidentiary standard was initially effectuated on April 13th, but that first rule change excluded a number of workers in the Governor’s order. We suspect this was an initial oversight, and the purpose of the second vote by the Commission was to correct and include all essential workers named in the Governor’s order. No doubt, the second vote was well-intended and appropriate from a purely academic viewpoint, but it may well create an interesting evidentiary challenge for some workers who may suffer an unfortunate exposure between the two Commission vote dates. We may see the Commission withhold formal filing of the first vote/rule change, just to avoid any such confusion or inconsistency as outlined above. Moving forward, we suspect the April 16th effective date will be used as that may be the only rule filed with JCAR. We will report developments as news becomes available.

Our assessment of this new rule, as well as our experience in defending occupational exposure claims, provides some guidance for defending these claims—however, any hope for a viable defense will depend on confirming facts in each case-specific situation. Accordingly, we suggest any Covid-19 exposure claim be investigated in great detail, documenting the chronology of facts and reviewed on a case by case basis to verify the best possible defense. Please consider asking for the OccDisease protocol offered below.

To read earlier KCB&A articles about Covid-19 claims and Rules, please take a look at our blog. www.keefe-law.com/blog.

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider–his new OccDisease Investigation protocol to allow you to:

  1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

  2. Investigate and verify claims for other workers possibly not covered by the Rules and

  3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, the new presumption for claims arising on or after April 16, 2020 will almost certainly insure any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

 

Synopsis: The IL WC Commission is On Emergency Status ONLY. Pro Se Settlements May Be Presented—See Below.

 

Editor’s comment: Based upon the continuing National Emergency and Worldwide Pandemic created by the COVID-19 virus, as well as the lack of technological resources, the Illinois Workers’ Compensation Commission must suspend regular operations during the month of April 2020.

The Commission will continue all cases to their next regularly scheduled 90-day continuance date.

Matters pending on the IL WC Commission Review Calls for Oral Argument during the months of March and April will be decided by the members of the Panel, as assigned, but only if the parties waive Oral Argument. A representative of the Commission will contact the attorneys to determine whether they wish to waive Oral Argument. If Oral Argument is waived, a Decision on Review will be issued by the assigned panel as quickly as possible.

The Commission will continue to conduct previously set Emergency Motion Calls for EMERGENCY motions, ONLY.

An “Emergency Arbitrator” will be available at the locations and on the dates and times set in the below schedule (this will be updated on a weekly basis) for presentation of “valid” emergency motions only.  “Valid” emergencies include issues involving the expiration of a statute of limitations, a party can reasonably be expected to suffer an unacceptable hardship, if not heard on an expedited basis.  Motions which do not constitute “valid” emergencies will be stricken. Simply put, if the emergency basis of the motion is not a valid emergency that justifies the risk associated with holding an in-person hearing in the midst of a national emergency and global pandemic, the motion will be stricken.

Access to the Emergency Motion Call will be limited to one individual per party.  Parties may be required to sign in and out of the facility. The Emergency IL WC Arbitrator is empowered to manage the Call in a manner he or she believes is reasonable to ensure the administration of justice and minimize the health and safety concerns connected to the COVID-19 pandemic.  Refusal to follow the directions of the Emergency Arbitrator will be grounds for removal from the Call and striking of the motion.

The following is a list of the locations for each of the Zones. Emergency Motion Calls will run from 9:00 AM to 12:00 Noon at the below locations on the indicated dates:

  • Chicago cases will be heard at the IWCC’s Chicago Office: Monday, Wednesday and Friday at the James R. Thompson Center, 100 W Randolph St. 8-200, Chicago, IL 60601

  • Zone 1 cases will be heard at the IWCC’s Collinsville Office: Tuesday and Thursday at 1803 Ramada Blvd STE B201, Collinsville, IL 6223

  • Zone 2 cases will be heard at the IWCC’s Springfield Office: Monday and Wednesday at 4500 S. Sixth St, Springfield, IL 62703

  • Zone 3 cases will be heard at the IWCC’s Peoria Office: Wednesday and Friday at 401 Main St 6th Floor, Peoria, IL 61602

  • Zone 4 cases will be heard at the IWCC’s Chicago Office: Monday, Wednesday, and Friday at James R. Thompson Center, 100 W Randolph St. 8-200, Chicago, IL 60601

  • Zone 5 cases will be heard at the IWCC’s Rockford Office: Tuesday and Thursday at 200 S. Wyman, Rockford, IL 61101

  • Zone 6 cases will be heard at the IWCC’s Chicago Office: Monday, Wednesday and Friday at James R. Thompson Center, 100 W Randolph St. 8-200, Chicago, IL 60601

Pro Se settlements may be presented to the Emergency Arbitrator on the second day of the Call listed above, only.

We don’t have guidance as to whether Claimant has to be physically present for pro se approval or whether an affidavit will suffice. We will keep asking.

Chairman Brennan advises that, prior to making use of the Emergency Motion Call, attorneys should engage in personal consultation and make reasonable attempts to resolve differences. The Chairman believes Illinois Supreme Court Rule 201(k) and Rule 3.4 of the Illinois Rules of Professional Conduct serve as appropriate guides for counsel during these exceptional times.

As these events continue to evolve, IWCC administration will work with the Governor’s Office and Illinois Department of Public Health to address this rapidly changing situation. Until directed otherwise, all other Commission operations will continue as usual. Parties are advised that any statutory filing deadlines and statutes of limitations will not be affected by these measures, and the IL WC Commission will continue to process all usual documents and filings by mail, and in person delivery.  

Chairman Brennan’s Office will reassess the need to extend or expand these measures on an ongoing basis. Watch this space for news as it unfolds.