Synopsis: Thoughts from Gene Keefe on the End of the IL WC Covid-19 Presumption, Learning From IN WC and Counter-Attacking This Awful Disease and the Ones To Follow.
Editor’s comments: The Covid-19 Presumption Cometh and the Presumption Goeth Away.
Last week, a judge in central IL knocked out the Covid-19 Presumption with a TRO or temporary restraining order—the main concern was the IL WC Commission didn’t appear to have the “power” or ability to issue such a rule. This presumptive standard for IL WC/OD cases was an issue reserved to the legislature with the Governor to then sign off on or veto.
This morning, without further ado, the IWCC had a conference call to confirm for you and I and everyone in the country they dropped the whole thing. They are going to rule on Covid-19 cases like all other claims—there won’t be a “presumption.” This doesn’t mean the IL legislature can’t pick it up and try to enact an amendment to the IL WC Act or an emergency rule or whatever. I personally hope they don’t and we just let the Arbitrators and Commissioners rule as they feel best and stop worrying about “presumptions” and “first responders” (whatever that might mean) and trying to figure out who is and is not an “emergency worker.” One can only smile to recall people who handle and sell cannabis were considered emergency workers!
Please see Kevin Boyle’s article below confirming IN WC didn’t waste hours and hours enacting a presumption rule. The IN WC Board can still rule an exposure caused a work-related disease. I vote IL Governor Pritzker and our IL Legislature stop worrying about the silly new WC/OD “presumption” rule and go on to focus instead on saving lives, ending the plague and we will figure out stuff at the IWCC like IN WC Board is more quietly doing.
Let’s Not Be Caught By Surprise Again, Folks, This Is Going To Keep Happening
Please understand these are my best thoughts and hopes for our nation and you, our readers. As part of the current pandemic battle, we are going to have to go back to being near each other at work this month or next. New Covid-19 exposures are sure to increase when that happens and the nutty media are certain to continue their “sky-is-falling” coverage of it because it makes great headlines.
I want everyone to understand we can and will win this fight and be much better prepared for future fights. This is NOT going to be the last pandemic of our lives—the Third World sent us this one and in my respectful opinion, we are sure to experience more of them because things across the globe aren’t going to dramatically change. Weird new diseases are certain to follow.
I feel we have to accept this new reality and get ready for more of it. We have to join together to do so. If we can stop the transfer of this awful virus from one human to another, we win. I believe we have to expect more and more of them. If we can’t stop and block pandemics, our economy and lifestyles are going to temporarily or permanently change and not for the better.
Pay Attention To OSHA Guides
As a first step, I feel every risk and safety manager in the U.S. has to read, memorize and implement these recommendations from OSHA in the link below. It has to be more “required reading” as we all start to return to job sites to allow us to eat and earn money until this scourge has ended.
https://www.osha.gov/SLTC/covid-19/controlprevention.html
Start with Better PPE
One great thought from me for all employers is to analyze and look for better PPE or Personal Protective Equipment. The cost of PPE in relation to ONE Covid-19 claim in your workforce is minimal. I don’t like masks and instead suggest “bucket hats” with large plastic shields for anyone and everyone. The idea of the “bucket hat” for men, women and children is simple—you can’t cough on me and I can’t cough on you. Please note the masks we see everyone wearing don’t typically cover your eyes and face. If someone coughs on your eyes and face outside the mask, you can get sick. It is also harder to touch your face, as we all do as much as 20 times a minute, if you have a plastic shield draped over it.
Here are some samples of what I am talking about from the web. You can purchase most of them on Amazon.com and have them delivered very rapidly. Please get going on this.
Gloves? When and where do employers issue them to workers?
Please understand that topic is fairly controversial but I recommend common sense. Gloves don’t protect you if you don’t use them wisely—some OccDocs just say skip the gloves and wash, wash and wash your hands some more. They also recommend no touching your face.
On the issue of gloves, I don’t completely agree they should be tossed aside in lieu of regular washing. If you or your workers are touching stuff that lots of other folks touch before you get it, like the U.S. mail or packages being delivered, I recommend you consider disposable gloves and handle properly in use and disposal.
Start Taking “No Touch” Temperatures and Ask Your Workers How They Are Doing
The EEOC just issued guidance allowing employers across the U.S. to take employees’ temperatures and ask them how they are doing. This information is HIPAA protected but employers need to start asking. You can and should now take temperatures with “no-touch” thermometers. Please note someone who isn’t running a temperature can still be a carrier but if you find out one of your workers has a temperature, send them for more testing, please!
Please note one of the major symptoms of Covid-19 is loss of smell or loss of taste. Again, there is a list of Covid-19 symptoms ever risk manager should know and be regularly asking your workers before work starts. When the next pandemic comes down the pipe, we need to figure out how to diagnose and attack that new one.
We appreciate your thoughts and comments. Please send any further recommendations on how to fight Covid-19 and other pandemics to follow. Please also feel free to post them on our award-winning blog. If you have questions/concerns, send me a reply and thanks.
Synopsis: Indiana’s Covid-19 Legal and WC/OD Landscape So Far. This is a “Must Read” for IN Risk and Claims Managers. Comment by Kevin Boyle of Keefe Campbell Biery & Associates, LLC.
Editor’s comment: Closures are here, but still we’re operating. Things Will Re-Open Soon.
I hope this Update finds you all healthy at home and your office. In Indiana, we’ve been largely spared some of the wild new orders issued by other states and governors on virus claims.
We do have a pending statewide shut down/stay at home order like every other state. The April 20, 2020 date was extended, to May 1, 2020. As of right now, the Indiana Worker’s Compensation Board is shut down to the public through May 1, 2020, and all hearings/pretrials have basically been continued until May. I predict the shutdown will get extended again barring some miracle.
Since the shutdown/stay at home order, the IN WC Board is still working. The IN Board and hearing members are actively issuing settlement and form approvals so that is helpful.
The Indiana Worker’s Compensation Board recently issued the following general guidance related to virus claims:
In Indiana, workers’ compensation benefits are paid by employers, not the State. Under our laws, the State cannot tell employers they must automatically cover employees who contract Covid-19, as Illinois tried to do. Whether an individual contracts the Covid-19 virus in the course and scope of their employment is a determination that must initially be made by the IN employer. This decision is routinely made at the time the employee notifies the employer of the disease/injury, or in this case, contraction of the Covid-19 virus.
It is well-accepted that first responders, as defined in P.L.113-2020, and health care providers, as defined at IC 16-18-2-163, as well as others directly involved in the provision of services to those exhibiting symptoms of Covid-19 are more susceptible to contraction of the disease as a direct result of their work duties. Others whose jobs necessarily entail close interaction with many people in a public setting are also more vulnerable to exposure and possible infection than those working remotely or in a limited office setting.
Employers are urged to consider making a prospective decision as to whether any vulnerable segment of their workforce will be presumptively covered under the provisions of the Indiana Worker’s Compensation Act should they:
a.) Be quarantined at the direction of the employer due to a confirmed or suspected Covid-19 exposure,
b.) Receive a Covid-19 diagnosis from a physician without a test,
c.) Receive a presumptive positive Covid-19 test, or
d.) Receive a laboratory-confirmed Covid-19 diagnosis.
Employers are encouraged to relay such decisions to their entire workforce and workers’ compensation insurance carrier/third party administrator as soon as possible in order to allay fears and expedite the claims process. Plans of action upon any occurrence listed above should also be communicated.
Finally, the Indiana Department of Labor has said it has no legal authority to declare a workplace emergency or change employer policies regarding infectious diseases, so they are relying on the CDC, U.S. Dept of Labor and other previously issued laws.
Stay tuned for more. If you have questions/concerns about Indiana worker’s comp, general liability, MVA, employment, virus or any other legal issues, please contact: kboyle@keefe-law.com
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:
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Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;
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Investigate and verify claims for other workers possibly not covered by the Rules and
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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, even without a presumption, our IL WC Commission may rule 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:
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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
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Zone 1 cases will be heard at the IWCC’s Collinsville Office: Tuesday and Thursday at 1803 Ramada Blvd STE B201, Collinsville, IL 6223
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Zone 2 cases will be heard at the IWCC’s Springfield Office: Monday and Wednesday at 4500 S. Sixth St, Springfield, IL 62703
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Zone 3 cases will be heard at the IWCC’s Peoria Office: Wednesday and Friday at 401 Main St 6th Floor, Peoria, IL 61602
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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
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Zone 5 cases will be heard at the IWCC’s Rockford Office: Tuesday and Thursday at 200 S. Wyman, Rockford, IL 61101
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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.