Synopsis: Note to the IL WC Bar—Consider a Release/Resignation Mandatory in any Claim Where an IL Employer Doesn’t Have WC Insurance.

Editor’s comment: This is stuff I remembered, after I forgot it. I have handled a number of claims where an employer might not have had WC insurance or it innocently lapsed or whatever. In such a claim, the injured worker may be able to sue their employer in Circuit Court. Please note my reasoned opinion settling such a claim on “pink” IL WC contracts wouldn’t end the Circuit Court exposure—you have to have a separate release to cut off those rights.

In American Kitchen Delights Inc. v. IWCC, No. 18-L-50818, 06/12/2020, the Illinois Appellate Court, WC Division overturned a determination that an employer was subject to civil liability for an employee’s alleged injury because the company was knowingly uninsured.

Claimant Galindo filed an IL workers’ compensation claim asserting he had suffered injuries while working for American Kitchen Delights Inc. in February 2018. Galindo’s attorney learned that AKD did not have workers’ compensation coverage on the date of the alleged accident. The IL Workers’ Compensation Act says an employer that knowingly fails to provide insurance to an employee may be subject to civil liability. However, as a prerequisite to filing a civil action, a claim of failure to provide workers’ compensation insurance must be presented to the Illinois Workers’ Compensation Commission for a hearing.

In April 2018, Galindo filed a motion for a preliminary hearing alleging the lack of WC Insurance. The company responded it did not have workers’ compensation insurance on the date of the alleged accident, but it denied that it had knowingly failed to secure coverage for Galindo. According to AKD, it purchased workers’ compensation insurance from the FCCI Insurance Co. through an insurance broker. The policy expired in December 2017, and FCCI issued a notice of nonrenewal. The notice was dated Oct. 30, 2017, and indicated that the policy would not be renewed because of AKD’s loss history.

The president of AKD confirmed he did not recall receiving the notice, nor did he recall the insurance broker telling him the policy would not be renewed. The president said he assumed AKD had workers’ compensation coverage up until April or May 2018 because several of its other policies had been canceled and reinstated.

In May 2018, AKD received an invoice from FCCI Insurance, and the company paid the invoice. AKD later received notices indicating its commercial automobile and umbrella policies had been rescinded. The company’s president contacted the broker and allegedly learned the workers’ compensation policy had not been renewed.

In November 2018, the IL WC Commission found that AKD had knowingly failed to provide workers’ compensation coverage to Galindo on the date of his alleged accident. A circuit court judge affirmed the Commission’s decision.

In their ruling, the Illinois Appellate Court confirmed that under state law, an employer found to have negligently failed to provide adequate workers’ compensation insurance is subject to prosecution for a Class A misdemeanor. A knowing failure is much worse and could result in a stop-work order and prosecution for a Class 4 felony, and civil liability. Please also note the minimum fine for not having WC insurance is $10,000 and they can also levy a further penalty of $500 a day.

The Appellate Court ruled the IL WC Commission’s finding that AKD was knowingly uninsured appeared to be based on the nonrenewal notice from October 2017. That notice is governed by Insurance Code Section 143.17a, which requires that the carrier provide notice of nonrenewal via mail, and the only method for establishing compliance is proof of mailing. In this case, the Court opinion noted, Galindo introduced evidence that the notice was issued, but he did not produce any proof that FCCI had mailed it to AKD.

Absent evidence of mailing, the Appellate Court said, the record did not establish that AKD had notice of the cancellation prior to the date of Galindo’s alleged accident. The Court’s ruling also said it also was not persuaded that AKD’s knowledge of Galindo’s claim had any relevance to the question of whether the company knew it had workers’ compensation insurance.

My focus for the practicing bar is to remember these rights are out there. If your goal is to extinguish or settle such claims, you have to resolve both the WC exposure and GL exposure arising from the possible knowing lack of coverage. A release is strongly part of resolution of such claims, in my view.

I appreciate your thoughts and comments. Please post them on our award-winning blog.

 

Synopsis: Essential Workers Exposed to COVID-19 Have Expanded Protections in Illinois OD/WC Claims.

 

Editor’s comment: On June 5, 2020, Governor J.B. Pritzker signed HB 2455. This new law provides protection for “essential workers” who are exposed to and diagnosed with COVID-19. Typically, workers’ hold the burden of proving they are entitled to Illinois Workers Compensation benefits. This new law seeks to create a rebuttable presumption that essential workers diagnosed with COVID-19 are entitled to Illinois Workers’ Compensation, actually OccDisease benefits. The rebuttable presumption applies when there is a confirmed diagnosis of COVID-19 made by a licensed medical doctor on or after March 9, 2020. In cases diagnosed on or after June 16, 2020, the worker must provide a positive lab test.

 

As veteran defense lawyers, we aren’t seeing lots of Covid-19 claims. We feel this is due to great masking, PPE and safety protocols by Illinois employers. Our new Covid-19 cases being reported on a daily basis are dropping. We also note Covid-19 is similar to influenza-A, you get it and suffer but then get over it. There aren’t a lot of “permanent” issues for folks that successfully recover. 

 

Who Qualifies For The “Rebuttable Presumption”?

 

The presumption of workers’ compensation/OccDisease coverage applies to all COVID-19 first responders or front-line workers. This includes:

 

•          healthcare workers,

•          firefighters,

•          paramedics and

•          law enforcement.

 

Additionally, it also applies to employees of essential businesses who encounter members of the public or work in locations with 15 or more people. This includes employees of the following businesses:

 

•          grocery stores and convenience stores

•          pharmacies,

•          food production/manufacturing/processing,

•          distribution and supply chain companies of essential products/supplies,

•          gas stations,

•          food banks,

•          hardware stores,

•          media outlets,

•          transportation providers,

•          banks

 

A full list of “essential businesses” can be found on Executive Order 2020-10, March 20, 2020. If you want a copy, send a reply.

 

Illinois Employer’s WC/OD Defenses

 

Employers can rebut the presumption by providing evidence that:

 

1.         the employer practiced, to the fullest extent possible, updated industry specific CDC or Illinois Dept. of Public Health guidelines to prevent COVID-19 exposure.

2.         The employee was working from home for a period of 14 consecutive days or more prior to the injury or occupational disease.

3.         The employee’s exposure to COVID-19 came from an alternate source

 

We ask all employers and local governments to send a reply or consult a KCB&A attorney to make sure your rights are adequately being protected.

 

We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

Synopsis: Join KCBA’s very own Brad Smith, J.D. for his podcast discussing all trending legal topics.

 

Editor’s comment: In Brad’s Everything Legal Podcast, Brad discusses the legal world in an understandable and practical way. In his initial episode Brad analyzes the legislation that matters to you and other notable circumstances surrounding the COVID-19 Pandemic. Brad’s podcast will continue to explore legal topics of significance on an ongoing basis. We hope you can subscribe and happy listening to you.

 

Please subscribe on Apple Podcasts, Spotify, or Anchor by searching “Brad’s Everything Legal Podcast.”

 

You can also link to the Apple Podcast here: Brad’s Everything Legal Podcast.

 

 

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