4-13-2020; John Campbell's; Update on new IWCC Rule Change For Covid; Shawn Biery on New GL Filing of Note and More

Synopsis: Unprecedented times lead to unprecedented action. IWCC Commissioners vote to lower the standard of proof for Covid-19 exposure claims, opening the door for thousands to assert a work-related exposure when the source of exposure would otherwise be difficult or even impossible to prove.

Editor’s Comment: Pursuant to an emergency meeting of the Illinois Workers’ Compensation Commissioners held the morning of April 13, 2020 (via phone conference to respect social distancing mandates), Section 9030.70 of the Rules Governing Practice will be formally amended to change the standard of proof for Covid-19 claimants alleging a work-related exposure, inserting a rebuttable presumption of work-related infection for the many workers still employed in the “essential jobs” being performed throughout the State. We were able to attend the call and gathered our understanding of the changes firsthand.

Recall on March 20th, Governor Pritzker issued what has commonly been called the “Stay at Home” order for Illinois residents, and effectively closed many businesses for day-to-day operation. However, realizing that many businesses are necessary for the public to function, a list of exceptions was provided in the order. That list of exceptions is extensive, including not just the healthcare services and grocery stores one would expect, but also included “critical” trades, construction, gas, transportation, media, charity, suppliers, manufacturing as well as professional services such as finance/banking/legal services to name a few. In short, the list of jobs/professions deemed “critical” and still operating is actually quite extensive, so the number of Illinoisans still working is substantial, despite the admitted downturn and layoffs we have seen.

The takeaway from all of this?
Well, based upon our understanding of this new Rule passed by the Commission, all of these “essential” workers will be afforded an evidentiary rebuttable presumption of work-related exposure on any Occupational Disease claim filed for Covid-19 infections. This will make perfecting a claim far more easy. Employers and their risk/safety managers must understand and adjust to this new rule immediately. Moreover, Insurance carriers must rapidly adjust to the greater number of claims which can now be asserted and more easily proven based on a presumption of work-related exposure. We understand this will be in place per emergency rule for 150 days; however, we expect an extension, if not formal, permanent change to the evidentiary rule.

In this regard, we are concerned that the Commission over-stepped their authority to create and enforce rules vs. implementing a change in the law itself, which is reserved for the State legislature. It is our impression that something as impactful as a change in the very evidentiary standard to prove a case under the law should be part of the law itself, and not modified by anyone other than our elected officials. We fear the Commission acted quickly and with good intention here, but without proper authority to enact a new legal standard; such a substantial change should be reserved for our legislature. We predict appeals are likely to challenge the procedural validity as well as the constitutionality of this unprecedented IL rule change.

Based on reports, most cases of Covid-19 result in a full recovery and the PPD value may be relatively modest. However, the healthcare costs for in-patient stays can be significant, and for those in the small percentage who tragically die from this virus, the defense industry must be mindful of the significant death benefits afforded in Illinois with a minimum full payout of over $755,000.00. Therefore, this presumption of occupational exposure is difficult to digest. While this presumption of exposure is rebuttable, and employers are afforded the ability to dispute the claim, any such denial may be difficult to maintain where arbitrators are to presume exposure occurred at work. Folks rarely know where they caught a common cold or flu each year, and such is true with the highly-contagious Covid-19 virus. It will be equally, if not more difficult for employers to prove a non-work related exposure when trying to challenge claims.

We understand the motivation behind this rule change and we suspect the Governor (and Commission to some extent) have been pressured to acknowledge those exposed at work and afford a remedy. It is hard to refute that those on the front lines treating this pandemic, as well as emergency services workers and the like, have a greater risk to exposure due to the nature of their job. However, it is our impression that the broader application of this reduced legal standard to all those currently working is misplaced. Moreover, we reckon the traditional legal standard requiring a “preponderance of the evidence” should suffice in those cases where work-related exposure actually occurred.

For example, we suspect arbitrators would find a work-related exposure for an intensive care nurse caring for those with Covid-19 even though the precise point of contact may not be identifiable per se. The same holds true for emergency service workers who have high volume exposure to those that are ill. In fact, we are aware of current Risk Managers who are already making the difficult decisions and acknowledging liability in some of the significant claims. We note multiple reports of the City of Chicago acknowledging at least one death of a police officer is considered a line of duty death.

Should your author here be afforded any such presumption of occupational exposure however? While legal services are considered “essential” per the Governor’s order, I do not find my work to entitle me to any such presumption of exposure in the event of an unfortunate contraction of this virus. In our view, workers should be required to demonstrate a valid increased risk of exposure due to their job without presumption of work-related exposure and our arbitrators are qualified to decide the facts on a case-by-case basis.

This article was researched and written by John P. Campbell, partner at Keefe, Campbell, Biery & Associates, LLC, in Chicago. John can be reached at 312-907-8222 or jcampbell@keefe-law.com

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Synopsis: In Recent News, Wal-Mart Has Been Sued In Civil Court by Estate of Employee Who Passed From Covid-19. What About The Exclusive Remedy of Workers’ Compensation? Research by Shawn Biery, J.D.
Comment: The family of Wal-Mart worker Wando Evans, who passed tragically from Covid-19 in March, filed the wrongful death lawsuit Monday April 6 in Cook County Circuit Court. Their suit alleges management at the store in Evergreen Park, Illinois, at first ignored symptoms exhibited by Evans and other workers which were consistent with COVID-19, the disease caused by the novel coronavirus. The family is accusing managers of ignoring his symptoms and failing to provide notice to colleagues of when & how he may have contracted the coronavirus disease.
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Description automatically generatedMultiple news outlets have reported that Evans, an overnight stock and maintenance worker employed at the store for approximately 15 years, was sent home by store managers on March 23 and found deceased two days later.
We should note that the filing attorney is well known to the firm, and we currently are defending claims he has filed against several clients. He is an aggressive and extremely competent attorney. We have received numerous questions with regard to the Covid outbreak and this suit, specifically with regard to how the WC Act application of exclusive remedy should apply to the suit.
While we continue to invite questions with regard to the impact of the Covid crisis, we wanted to provide some context and insight to this action based upon the limited information available at this time. We also can only speculate, however there has been some debate regarding whether the recent emergency meeting of the Illinois Workers’ Compensation Commission was at least in part convened due to this or similar filings, or the perception that extensive filings may be forthcoming.
Our initial action if we were defending the claim would be to seek an immediate dispositive motion due to the employee-employer relationship which was clearly present. Asserting the “exclusive remedy” under the Illinois Occupational Disease Act, we would argue the matter should be appropriately adjudicated before an Arbitrator of the Illinois Workers’ Compensation Commission.
It should also be noted, that dismissal would be swift if Wal-Mart were to acknowledge liability under the Occupational Disease Act and begin to pay benefits. However, based upon the speculative nature of work related compensability, we would not suggest this approach to include an admission of liability per se. While the matter may be eventually be determined to have been work related, our initial action would seek a limited holding that the appropriate venue for this litigation is the Workers’ Compensation Commission, as the only remedial body for an employee against their employer.
This begs a common question; is the only remedy for an employee against their employer via the Illinois Workers’ Compensation/Occupational Disease Act? The answer is almost always, yes. However there are a few limited exceptions to the exclusive remedy / prohibition against suing employers for work injuries.
In Illinois, an injured worker may only generally sue their employer for injuries caused by the employer’s negligence under the following circumstances:
They are not really an Employee – The Illinois Workers’ Compensation Act delineates certain categories of workers which are not classified as employees. This includes real-estate brokers, broker-salespeople, commission-only salespeople, and some short-term agricultural workers. If workers in these categories are injured on the job, they may sue their employers under traditional theories of negligence rather than the WC Act.
The Employer doesn’t have WC Insurance and leaves themselves outside the Act. Illinois requires employers to have workers’ compensation insurance, regardless of the number of employees on staff. Even if you are a sole proprietor, you should maintain WC insurance. If you as an employer do not maintain adequate WC insurance, an individual who may perform a service for you and become injured in the process can sue the “employer” for negligence in civil court.
If Employer intentionally causes an injury. This may be the theory under which they are attempting to pursue the Estate of Evans v. Wal-Mart claim. This scenario is incredibly rare and usually only comes into play when a worker is assaulted on the job. Even in cases where the employer was grossly negligent – for example, by failing to repair equipment which was known to be defective or in need of repair for an extended period of time – the injured employee generally must still seek compensation through the workers’ compensation system. It is usually only when the employer explicitly intends to cause injury to the employee can the employee pursue a lawsuit outside of the WC venue.
Generally without these exceptions, an injured worker cannot prevail in a suit against their employers for negligence in Illinois other than in the WC venue under the auspices of the IL WC Act.
As noted, there are nuances in how you may remove such a matter from the civil arena to the WC venue and you should make sure you obtain competent counsel. If you make the wrong arguments/admissions in a court record, you may be implicitly accepting WC liability with a poorly framed argument; you should be wary of the risks. If you are reading this update, you are already on the right path. Our best advice is to seek experienced legal counsel for these somewhat complex claims to avoid pitfalls of liability. This author has experience with similar such claims and (unfortunately) has had clients fail to heed advice which led to significant million-dollar exposure.
This article was researched and written by Shawn Biery, who can be contacted at sbiery@keefe-law.com with any questions, or you can contact any of the attorneys on our great team who are working diligently to continue to achieve favorable outcomes during this extraordinary pandemic.
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Description automatically generatedSynopsis: 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.