Synopsis: The Rebuttable Presumption Returns to Illinois Workers’ Comp for Covid-19 Claims! Are You Doing Everything You Can To Protect Your Workers? If So, You May Be Able To Rebut The Presumption! Thoughts and Research by Shawn R. Biery, J.D.; MSCC and John P. Campbell, Jr. J.D.

 

Editor’s comment: Last month, the IL WC Commission-created “emergency rule” to create a rebuttable presumption on alleged Covid-19 workplace infections was the subject of lawsuits and eventually withdrawn, which compelled an  “agreed” legislative change to the Occ Disease Act. Our IL General Assembly passed legislation renewed the rebuttable presumption of work-related Covid-19 exposure, again lowering the bar to prove a claim.

 

While the new law allows all “essential” employees working during this pandemic to enjoy the rebuttable presumption of work-related infection, the new rule purports to make it easier for employers to also rebut those claims compared to the previous rule change,  which would have been nearly impossible to rebut.

 

Critically, IL Employers may overcome the presumption by establishing appropriate protections were in place at your workplace at least 14 days prior to diagnosis/symptoms of claimant. Such evidence of personal protections for employees will not trigger denial of an award per se, but it would shift the burden back to the employee to prove the employment was the cause of the source of exposure. For this reason, it is critical for employers to document efforts to follow the CDC and IDPH Guidelines and provide personal protective equipment whenever possible.

 

The key provisions will include:

 

  • All essential workers receive the rebuttable presumption of WC/OD coverage.  

  • IL Employers simply need to meet the basic standard of proof to rebut the rebuttable presumption. Basically, if an employer can evidence they were following CDC or IDPH guidance and practices, the burden of proving the claim of workplace infection returns to Petitioner.

    • This removes the prior need to meet a “clear and convincing” standard.

  • Petitioner will have to prove they actually contracted the virus due to a workplace exposure to prevail. Simple “exposure” with no evidence of Covid-19 symptoms or diagnosis is insufficient.

    • Before June 15, an employee has to have a positive diagnosis or medical test;

    • on or after June 16, a positive test result is required.

  • The presumption ends of December 31, 2020. The forces of IL Labor originally sought no end date.

 

Other clarifications include the following

 

  • The employer’s experience modification will not change due to Covid-19. This is a truly odd concept but it is what it is—it is difficult to imagine an employer with numerous Covid-19 related exposures/infections isn’t going to have any change in experience mods.

  • A home or residence is not the “workplace.”

  • Employers receive a TTD offset for employees that were on paid leave or extended FMLA.

 

While the new rule still adds a new burden-shift on employers, it is nevertheless a burden which can be met by every employer who is already in compliance with personal health and safety guidelines in this Covid-19 era. Now it is even more critical to provide alternative work environments/spacing/staggered schedules and providing PPE and other similar protections to your workers.

 

The addition to the OD Act which was passed May 22 and we await verification of the Governor signing same. We have no doubt Governor Pritzker will sign this swiftly into law. We also expect this to be retroactively applied to cover claims from the earliest days of the Covid-19 pandemic, covering exposures from March 9, 2020 to December 31, 2020. This makes it somewhat more challenging for employers to prove they were following CDC Guidelines and providing PPE early on, before such protections were widely advocated by health officials.

 

This article was researched and written by Shawn R. Biery (sbiery@keefe-law.com) & John P. Campbell (jcampbell@keefe-law.com). You can contact any of our attorneys for guidance on the defense of your Covid claims or any of your workers’ compensation concerns.

 

 

Synopsis: The IWCC Continues to Evolve While The State of Illinois Struggles To Reopen. June Special Circumstance Arbitration Rules Are Announced.

 

Editor’s comment: For the month of May, the IWCC allowed emergency hearings and pro se approvals under certain conditions and conducted telephonic status calls and generally cases progressed to some extent. For June, we anticipate more availability to make progress due to the new procedures and opportunities. The parties will be able to communicate with Arbitrators via email or telephone conference as scheduled by the Arbitrator.

 

The highlights include:

 

  • All status calls and pre-trials will take place via Webex

    • Only actual trials and pro se approvals require appearances

    • There will not be Emergency Arbitrators sitting any regular schedule

    • Chicago pro se approvals will occur only on Wednesdays

 

  • For each case seeking a trial date, the requesting party must provide notice of the trial date in writing verifying the scheduled hearing date

    • A copy of all motions must be emailed to the arbitrator no less than 48 hours in advance of the status call

    • Trial times will be staggered and assigned to avoid overcrowding

    • Parties are not to appear at the hearing site until 10 minutes prior to their scheduled time

 

  • All cases which do not receive a trial date will be continued for the 90 day continuance cycle regardless of whether they are above the line

 

  • All cases which receive a trial date will be set for the first half of the docket for pre-trial

    • All pre-trials will occur via Webex

 

  • Downstate pro se approvals are to be arranged with the Arbitrator for an appearance date via email

 

  • PPE will not be provided, however will be required for everyone (attorneys, pro-se claimants, witnesses, etc) for all appearances

 

  • All parties are to practice social distancing and leave the premises as soon as their business is concluded.

 

This information was compiled and prepared by Shawn R. Biery who can be reached at sbiery@keefe-law.com with any questions.

 

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, 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