Heyl Royster

 


Heyl Royster

 

Emergency Rule Approved By IWCC Regarding COVID-19 Diagnosis For “Essential” Employees

4/17/20

By:
Kevin Luther - Rockford & Chicago Offices
Lynsey Welch - Rockford Office
Jim Nowogrocki - St. Louis Office

On Monday April 13, 2020, the Illinois Workers’ Compensation Commission voted to approve a new emergency rule creating a rebuttable presumption regarding causation for employees of an “essential business” as defined in Governor Pritzker’s Executive Order. It should also be noted that this meeting of the Workers’ Compensation Commission failed to provide the public with 48 hours’ notice pursuant to the Open Meetings Act. The public present was given an opportunity to speak and did raise this issue prior to the vote. This executive order creates a presumption that any employee who tests positive for COVID-19 who is currently working as an “essential employee” would be entitled to workers’ compensation benefits under the Illinois Workers’ Compensation Act.

The emergency rule amends Section 9030.70 of the Commission’s Rules of Evidence by adding a new a-1 and a-2 to the Administrative rule. a-1 provides a rebuttable presumption for first responders and front-line workers who are exposed to COVID-19. a-2 defines first responders and front-line workers. The new rule expands coverage to include not only first responders but also includes all workers of the essential businesses provided for in Governor Pritzker’s Executive Order 2020-10.

  1. In any proceeding before the Commission where the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), 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 COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.
     
  2. The term “COVID-19 First Responder or Front-Line Worker” means any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, correction officers, and the crucial personnel identified under the following headings in Section 1 Part 12 of Executive Order 2020-10 dated March 20, 2020: “Stores that sell groceries and medicine”; “Food, beverage, and cannabis production and agriculture”; “Organizations that provide charitable and social services”; “Gas stations and businesses needed for transportation”; “Financial institutions”; “Hardware and supplies 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”; “Transportation”; “Home-based care and services”; “Residential facilities and shelters”; “Professional services”; “Day care centers for employees exempted by [Executive Order 2020-10]”; “Manufacture, distribution, and supply chain for critical products and industries”; “Critical labor union functions”; “Hotels and motels”; and “Funeral services”.

On April 15, 2020, the Workers’ Compensation Commission again met and expanded the new rule to also include the following personnel, which were not listed in Section 1 Part 12 of the Executive Order 2020-10. These include Healthcare and Public Health Operations; Human Services Operation; Essential Infrastructure, Essential Government Functions; and Businesses Covered by this Executive Order: "any for-profit, non-profit, or educational entities, regardless of the nature of the service, the function it performs, or its corporate or entity structure.”

What This Does Not Mean

This does NOT mean that all COVID-19 claims should be immediately accepted. The first step in evaluating a new claim is to determine if the employer is a covered as an “essential business” as defined by Governor Pritzker’s Executive Order dated March 20, 2020. Second, per the plain reading of the emergency rule, the petitioner has to have an “injury” or “period of incapacity” resulting from exposure to COVID-19. Third, this rule also has a time constraint of injury or period of incapacity resulting from exposure to the COVID-19 virus during a COVID-19 related state of emergency.

What It Does Mean

This emergency rule only provides that the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s employment for the “essential business.” A rebuttable presumption is just that, rebuttable. It does not equal automatic compensation for the petitioner. The current Workers’ Compensation statute has always had a similar provision when it comes to First Responders who have heart, lung, blood, cancers, and other diseases listed in the statute. It is up to the defense team of the employer, adjuster, and attorney to establish a presumption that the employee was exposed to a non-occupational cause of the virus. Once the employer establishes another non-occupational cause, the presumption disappears and the claim has no presumption of acceptance. The claim proceeds on a normal burden of proof analysis.

Current medical evidence still suggests that there is a 14-day incubation period for COVID-19. The claimant’s activities outside of work during this time are significant in setting up a successful defense. It’s important for employers, claims handlers, and legal counsel to investigate other possible evidence of exposure based on the claimant’s activities outside of work. Without it, a chain of events suggesting a causal connection between the claimant’s employment and illness goes undisputed.

Specifically, was the claimant participating in large group gatherings or travel to locations with outbreaks of COVID-19 before the incubation period? This information could be obtained through a social media search, witness statements from co-workers, and medical records. Social media posts, especially those with location tags, can also be evidence of the claimant’s social activity or recent travel history. Additionally, the claimant’s reported history in their medical records will be an important source of evidence. Because of the nature of transmission of COVID-19, their medical history will likely include responses regarding their recent social activities and travel history.

Another opportunity to investigate the claimant’s activities during the potential incubation period is during the initial witness statement taken of the claimant. It is essential to inquire about the claimant’s travel and social activity. Specifically, have they traveled, where were they traveling to/from, did they travel by airplane or cruise ship, have they gone out into any public areas?

In addition to investigating the claimant’s social and travel history, employers should take all the precautions possible to reduce the risk of their employees’ potential exposure to COVID-19 at the workplace. Implementing and enforcing policies that reduce the risk of spreading the infection at work strengthen the persuasiveness of evidence that the claimant’s risk factors for contracting COVID-19 outside of work were the cause of infection.

What Is Rebuttable Presumption?

The concept of “rebuttable presumption” is not completely new to the Illinois Workers’ Compensation Act. For example, in the case of individuals commonly referred to as “first responders,” the following has been in the Illinois Workers’ Compensation statute since 2005:

Any condition or impairment of health of an employee employed as a firefighter, emergency medical technician (EMT), or paramedic which results directly or indirectly from any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer resulting in any disability (temporary, permanent, total, or partial) to the employee shall be rebuttably presumed to arise out of and in the course of the employee’s firefighting, EMT, or paramedic employment and, further, shall be rebuttably presumed to be causally connected to the hazards or exposures of the employment. This presumption shall also apply to any hernia or hearing loss suffered by an employee employed as a firefighter, EMT, or paramedic. However, this presumption shall not apply to any employee who has been employed as a firefighter, EMT, or paramedic for less than 5 years at the time he or she files an Application for Adjustment of Claim concerning this condition or impairment with the Illinois Workers’ Compensation Commission. The Finding and Decision of the Illinois Workers’ Compensation Commission under only the rebuttable presumption provision of this subsection shall not be admissible or be deemed res judicata in any disability claim under the Illinois Pension Code arising out of the same medical condition; however, this sentence makes no change to the law set forth in Krohe v. City of Bloomington, 204 Ill. 2d 392.

Source: P.A. 93-721, eff. 1-1-05; P.A. 95-316, eff. 1-1-08.

820 ILCS 305/6(f) (2008).

The appellate court has on occasion determined what "rebuttal presumption" means from a legal standpoint as identified in section 6(f). In Johnston v. Illinois Workers’ Compensation Commission, 2017 IL App (2d) 160010WC, a firefighter with 15 years of service suffered a heart attack. At trial, both parties presented evidence regarding causal connection. The petitioner presented the deposition testimony of a treating cardiologist, and the respondent presented the testimony of an internist who performed a section 12 examination. The appellate court held that to rebut the presumption, the employer need only to present some contrary evidence regarding the presumed fact. If the employer is successful in rebutting the section 6(f) presumption, the employee still can assert that the employment was a “cause” of the condition of well-being come pursuant to Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193 (2003).

Accordingly, the appellate court determined that simply “some evidence” can rebut the presumption. The petitioner had argued that to the respect that the presumption of 6(f), the evidence should be “clear and convincing” which was rejected.

Another appellate court decision recently considered the rebuttable presumption issue. In Simpson v. Illinois Workers’ Compensation Commission, 2017 IL App 3d 160024WC, the petitioner was a firefighter for the City of Peoria. The appellate court again discussed the standard to utilize in rebutting the presumption in 6(f). It was noted that it was not necessary for an employer to eliminate any occupational exposure as a possible contributing cause. Rather, the appellate court stated that once “some” evidence of “another cause” of the petitioner’s condition is introduced, the prior assumption ceased to exist. At that point, the Illinois Workers’ Compensation Commission is free to determine the factual question based on the evidence before it, without consideration to the presumption.

Once the presumption is rebutted, Section 305/1(d) of the Illinois Workers’ Compensation Act, which was added in 2011, defines the burden of proof and what standard is required in the establishment of a compensable accident. The statute provides:

To obtain compensation under this Act, an employee bears the burden of showing, by a preponderance of the evidence, that he or she has sustained accidental injuries arising out of and in the course of the employment.

820 ILCS 305/1(d) (2011).

The dictionary definition of “preponderance” is “a superiority or excess in number or quantity.” Webster’s Third New International Dictionary, 1791 (1976). Websters further defines majority “as a number” “greater than half of the total.” Webster’s Third New International Dictionary, 1363 (1976). The Illinois courts have informally held “preponderance of the evidence” is a common phrase and requires no definition. City of Chicago City Railway Co. v. Kastrzewa, 141 Ill. App. 10 (1st Dist. 1908). The term “[p]reponderance of the evidence” has been defined as “the greater weight of the evidence or evidence which renders a fact more likely than not.” Lyon v. Department of Children and Family Services, 209 Ill. 2d 264, 279 (2004). The Supreme Court has also defined ”preponderance of evidence” as requiring that a proposition be proved by a preponderance of the evidence which is found to be more probably true than not true. Avery v. State Farm Mutual Auto Insurance Co., 216 Ill. 2d 100 (2005).

Accordingly, despite what has been reported as now “automatic” acceptance of a COVID-19 claim against a type of employer identified in the emergency rule, the rebuttable presumption concept is not automatic and does not require acceptance of the claim. Tactics to overcome the rebuttable presumption may include an opinion or statement from the treating physician that there is evidence of other causes of the COVID-19 condition, or perhaps by a Section 12 IME where records are supported by a report from the appropriate specialist stating that there is evidence of other causes.

What Is Exposure?

The Illinois Workers’ Compensation system includes a statutory section known as the Workers’ Occupational Disease Act. Under this Act, an employee experiences “exposure” when for any length of time, however short, he or she is employed in an occupational process in which the hazard of a disease exists. 820 ILCS 310/1(d). Traditionally, an employee is not required to provide any proof of the amount of time, duration, for amount of exposure. An employee does not have to identify the particular exposure from the employment that caused the disease. Furthermore, proof of a hazardous exposure is “considered of the employment” when the employee proves employment in an occupational hazard exists. Thermos Co. v. Industrial Comm’n, 83 Ill. 2d 54 (1980).

Prior to the COVID-19 crisis and the new emergency orders, lay person testimony and evidence concerning the irritants or agents that a worker was exposed to is acceptable to prove exposure. Testimony by workers or their spouses that the petitioner, for example, would come home covered in a chemical dust demonstrates exposure. Beeler v. Industrial Comm’n, 179 Ill. App. 3d 463 (5th Dist. 1989). Personal observation of coworkers, as well as exposure established by testimony from either the claimant or coworker describing chemical substance labels, can be sufficient. Service Adhesive Co. v. Industrial Comm’n, 226 Ill. App. 3d 356 (1st Dist. 1992).

Prior to the COVID-19 crisis, a finding of a causal connection may be based on a medical expert’s opinion that a disease could or might have been caused by the work exposure. However, a “mere possibility” that an employee may become afflicted with the disease in the course of employment is not sufficient to support an occupational disease award. Weekley v. Industrial Comm’n, 245 Ill. App. 3d 863 (2d Dist. 1993).

In Certi-Serve, Inc. v. Industrial Comm’n, a “chain of events” suggesting causal connection was sufficient even when the ideology of the disease was unknown. Certi-Serve, Inc. v. Industrial Comm’n, 101 Ill. 2d 236 (1984). In Certi-Serve, the standard of proof for causation was whether or not it was more probably true than not true that the work place was a causative factor in the development of the disease. Baggett v. Industrial Comm’n, 201 Ill. 2d 187 (2002), as modified on denial of rehearing (Aug. 29, 2002).

With the two emergency rules that have been implemented on COVID-19 cases, there is “a presumption” that the illness is work related. However, the language of the rules state that claimant must show “exposure to COVID-19.” If evidence is presented, for example, that coworkers affirmatively tested positive for COVID-19, and if the claimant had encountered or was in physical proximity to those COVID-19 positive coworkers, then they may be able to establish “exposure.” This may be very easy to do by a claimant if in fact the medical condition of coworkers and positive “COVID-19” diagnoses are made public to the employees. One wonders, however, how a frontline grocery clerk, for example, would be able to prove that he or she had exposure to a positive COVID-19 individual who was merely a customer. That customer’s medical condition would not, of course, be known to the employer or any of the employer’s workforce.

Accordingly, the exposure requirement may be an impediment to any claimants who do not have information about specific COVID-19 diagnosed individuals.

OSHA

OSHA has issued a guideline for when a confirmed case of COVID-19 may become a “recordable” event.  Here are the required guidelines in red. There is also a “causation” element similar to a WC claim, though the decision to record is slightly more of a burden of the employer to make a good faith determination.

Recording Workplace Exposures to COVID-19

OSHA recordkeeping requirements at 29 CFR Part 1904 mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.

COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

  1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
     
  2. The case is work-related, as defined by 29 CFR 1904.5; and
     
  3. The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

Section 1904.5(a) provides that an injury or illness must be considered work-related if an event or exposure in the work environment either caused or contributed to the injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Section 1904.5(b)(2) specifically applies. A case is presumed work-related if, and only if, an event or exposure in the work environment is a discernible cause of the injury or illness or of a significant aggravation to a pre-existing condition. If an employee’s condition arose outside of the work environment and there was no discernable event or exposure that led to the condition, the presumption of work-relationship does not apply.

If it is not obvious whether the precipitating event occurred in the work environment or elsewhere, the employer is to evaluate the employee’s work duties and environment and make a determination whether it is more likely than not that work events or exposures were a cause of the injury or illness or of a significant aggravation of a pre-existing condition (§29 CFR 1904.5(b)(3)). The employer has the ultimate responsibility for making good-faith recordkeeping determinations regarding an injury and/or illness. Employers must decide if and how a particular case should be recorded and their decision must not be an arbitrary one.

Employers need to investigate further a positive result for COVID-19. Was there an event or exposure to COVID-19 that is a discernible cause of illness? This is certainly going to raise a lot of legal issues because what if an employee was exposed to a family member at home who had a positive diagnosis? What if an employee was exposed to COVID-19 while at a grocery store? It would be important for the employer to seek this background information before making a determination. Going forward we may see some further guidance from OSHA on the causation element.

Conclusion

Every employer will need to develop their own policy as to acceptance or denial of these claims. While some employers will need to consider many factors, legal and otherwise, in making that decision, a misunderstanding that all such claims will be found compensable should not be part of the decision making process. While it remains to be seen how the Commission and the Courts will interpret this Executive Order, it does seem possible, employers might retain good ability to defend against claims based on illnesses associated with COVID-19. Given the widespread presence of the virus everywhere in our communities, the savvy employer will often be able to present evidence which would rebut the presumption. In addition, once the presumption is rebutted, and a normal causation standard is applied, there will be many scenarios where it will be difficult for the petitioner to prove the virus was in fact contracted through an exposure in the workplace. That is especially true if the employer can present solid evidence of good safety and social distancing practices, consistently enforced, in the work place.