5-12-2020; A “How To” on Defending Work Injuries for Employees Who Will Continue to Work From Home; New Proposed IL legislation to Deal with the Covid-19 Crisis and more

Synopsis: Managing a New WC/OD World After Covid-19 Passes—A “How To” on Defending Work Injuries/Exposures for Employees Who Will Continue to Work From Home.

Editor’s comment: I feel confident Covid-19 is cresting and going back down to the point it will soon disappear from our lives. Yes, some of that sentiment may be “hopeful thinking” by me. What I do feel we are going to experience is lots of workers are going to try to remain at and work from home. I assure my readers if your account/company has folks working from home, they can and will receive WC/OD benefits for work-related injuries and exposures. In short, these benefits don’t end when the worker works from home.

This new “at home” job setting will create WC challenges for risk and claims managers across the country and the globe. When employees work remotely from home or other locations, the normal WC rules of In The Course of and Arising Out Of or ICO/AOO become complicated and challenging.

The same is true of WC/OD subrogation potential. When an employee is injured in or around their home while working, subrogation targets might be challenging. Cybersecurity can also be greatly compromised when an employee utilizes an unsecured or public Wi-Fi source and works from home using an unsecure personal laptop, notebook, cell phone, or other electronic device.

In the wake of the global pandemic involving the COVID-19 coronavirus, employees across the globe are being told to work from home or given that option. I think lots of workers are going to want to remain at home for months or maybe for all the future time they will be working. Claims handlers and subrogation professionals should be aware of the many legal nuances that arise when employees work from their couch or the local coffee shop.

The cost savings of having employees work from home, combined with convenience for workers, has made “work from home” a growing phenomenon. Rest assured, injuries/exposures occur at and around home just like they do in the workplace. As a general rule, if an employee deviates from performing their job for a personal benefit and is not furthering the business of the employer, then any injury that occurs during the period of deviation is usually not considered within the course and scope of employment and, therefore, is not covered. Once the employee returns to the home work site or returns from the deviation to the course of employment, then any work-related injury/exposure that occurs after that point is covered. This line is fairly bright when you have employees leaving their home desk/office and travelling to and from lunch.

Crucial to Managing an “At Home” Work Accident or Exposure—Seek Rapid Reporting and Thorough Incident Investigation

What you can immediately tell for all claims and risk managers trying to deal with “at home” injuries—you have a major accident investigation issue. It is crucial to do two things:

1. Confirm for all your workers they need to report any work-related incident or exposure at the earliest opportunity—Send the message that coverage may be blocked or unnecessarily delayed due to late reporting;

2. And then document, document, document what the worker did prior to, at the time of and after the incident. Do a full incident investigation protocol—consider visiting the worker at the earliest opportunity to get the scoop on what happened, where and why it occurred.

 You should have something of an advantage over the workers when you diligently investigate any asserted work-related incident—you know what you are looking for and you have to hope the employee is going to tell you the truth, the whole truth and nothing but the truth.

Please remember “horseplay” is usually not a WC-covered activity in most states. If the employee is feeding their cats or emptying a litter box while at home and falls down, I don’t feel that should be WC-covered. When the instrumentality of the injury is solely within the province of the employee and the employee can say just about anything regarding what caused the injury and when it occurred, employees injured while working at home must be handled differently for purposes of both the initial claims handling and subrogation. Diligent questions must be asked, and different standards must be adhered to.

WC/OD Claims concerns involving remote employees is not limited to worldwide pandemics. According to a report published in 2010, nearly 24% of American workers reported routinely doing some or all of their work from home. A recent study revealed that more than 60% of the world’s work force works at least one day a week remotely and that almost 50% of all employees work half the week outside of the office.

Employers who are concerned with workplace safety have little or no control over the employee’s home office environment. The challenges are not the employers’ alone, either. Employees also have increased challenges and risks when working from home. It is much more difficult to prove an injury was work-related because there is usually less evidence available in these home office scenarios. An accident at a business or job site may have witnesses or be caught on security footage. Work at home employees are often all by themselves while they work, so there is often no one present to corroborate a sudden injury or accident or to help determine the precise conditions of the injury.

Another challenging WC/OD claim issue arises with regard to the “Coming and Going Rule.” Although the rule varies from State to State, it generally provides that if an employee is injured on their commute to or from work (in other words, “coming and going”) this is not considered within the course of their employment and would, therefore, not be covered. There are exceptions to this rule.

·        Employee’s employment contract includes transportation to and from work;

·        Employee has no fixed place of work;

·        Employee is on a special mission for employer; or

·        Circumstances are such that the employee was furthering the business of the employer.

WC Subro Challenges

When employees are injured while working at home, subrogation can be challenging. If the work at home injury is caused by a dangerous condition due to the employee’s roommate or the employee’s landlord, new questions of third-party liability must be examined. Contact Brad Smith who heads KCB&A’s subro team at bsmith@keefe-law.com or just send me a reply to consult in such situations, because the First Report of Injury and the first communications with the employee suddenly become subrogation-related—something most claims and risk professionals are not accustomed to.

Summary

I promise my readers we are soon to see lots of “at home” injuries and claims. You need to start letting all workers know to report any injury/exposure at the earliest opportunity and you then have to do a full incident analysis to determine compensability and possibly start reserving and paying medical bills and lost time.

If you have questions or concerns about how to best defense at home WC/OD claims, send me a reply.

Synopsis: New and Alarming IL legislation from the IL General Assembly to deal with the COVID-19 pandemic. 

Editor’s comment: We first saw this proposed legislation on the IL State Chamber’s weekly update. We join in the State Chamber's opposition to this bill. Please note there is no stopping the Democrat “super-majorities” in the IL House and Senate—the only thing that can “slow” legislation in this one-party state is the media and an uprising from voters to your representatives. I recommend all my readers from the defense side of the WC/OD matrix consider joining the IL State Chamber, as they “have your back” on all issues of importance to you and your business. For more information, take a look at their website at www.ilchamber.org.

HB 5769, sponsored by Rep. Andre Thapedi (D-Chicago) would create the Personal Protective Equipment Responsibility Act (or PPERA) requiring an IL employer designated as an “essential employer” under a disaster proclamation issued pursuant to the Illinois Emergency Management Act or an executive order issued pursuant to the disaster proclamation to provide personal protective equipment to independent contractors and to all employees during the duration of the disaster proclamation or executive order. It also creates a new common law cause of action allowing the recovery of damages, including punitive damages, and attorney's fees. In my view, this is “business-busting” litigation that would crush mid-sized and small businesses under new exposures and claim costs.

First, the legislation seeks to bypass the workers' compensation system and our "exclusive remedy" doctrine. The “exclusive remedy” doctrine bars employees injured on the job from making a tort liability claim against their employer. The rapid and certain benefits provided under workers' compensation or occdisease are the sole remedy available to an injured or ill employee.

The IL Workers' Compensation and Occupational Disease Acts and case law provides that if an employee contracts a disease that is caused by the workplace, such as COVID-19, defined benefits are paid to the employee and the employer is protected from having to defend expensive and protracted litigation along with devastating  legal issues like punitive damages.

Second, the PPERA provides a cause of action for independent contractors which under the law are not employees. We consider it very odd to start supervising the relationship between companies that hire independent contractors.

I join with the IL State Chamber to confirm this is a very flawed bill that could seriously harm IL employers at a time when they are struggling to remain viable and need the most help and will actively be opposing this legislation. Please watch this space for news as this legislation proceeds.

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

5-4-2020; Legal Efforts Continue with News on Depositions and IWCC Developments by Shawn Biery; John Karis Reports on False Identity Claim and Consideration of Evidence After Record Closed and more

Synopsis: Legal Efforts Continue In This Ever Changing World. News on Depositions and IWCC Developments, As Well As May 2020 Telephonic Status Calls. Thoughts and comments by Shawn R. Biery, J.D., MSSC.

Editor’s comments: The Covid-19 Litigation Impact Continues; However WC and Other Claims Litigation Marches On.

In one of the more recent Memorandums from the IWCC Chairman, the Illinois Workers’ Compensation Commission indicated they are suspending regular operations during the month of May 2020. In light of the withdrawal of the previously promulgated amendment generally known as the “Rebuttable Presumption” rule, another  IL WC Committee  will  be  formed  to  examine other possible actions that the IL WC Commission may take, in light of the Covid-19 Pandemic and its impact upon the actions of this Commission under the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Diseases Act.

A Special Circumstance Arbitration Procedure has also been posted on the IWCC website. In that regard, all status calls will take place by phone and certain cases will be allowed to be set for in person hearings in June 2020. The IL WC Commission will continue cases to their next regularly scheduled 90-day continuance date, unless a hearing date has been set pursuant to the Special Circumstance Arbitration Procedure. Our KCB&A office has participated in the initial telephonic status and it was relatively well managed and productive. We continue to seek appropriate hearings to continue to attempt to resolve matters via all avenues available.

The  IL WC Commission  will also  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 via published schedule  (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. 

Emergency Motion Calls will generally run from 9:00 AM to 12:00 Noon at the below locations:

• Chicago cases will be heard at the IWCC’s Chicago Office:  Monday, Wednesday and Friday

• Zone 1 cases will be heard at the IWCC’s Collinsville Office:  Tuesday and Thursday

• Zone 2 cases will be heard at the IWCC’s Springfield Office:  Monday and Wednesday

• Zone 3 cases will be heard at the IWCC’s Peoria Office:  Wednesday and Friday 

• Zone 4 cases will be heard at the IWCC’s Chicago Office:  Monday, Wednesday, and Friday

• Zone 5 cases will be heard at the IWCC’s Rockford Office:  Tuesday and Thursday
  Zone 6 cases will be heard at the IWCC’s Chicago Office:  Monday, Wednesday and Friday

Pro Se settlements may be presented to the Emergency Arbitrator on the second day of the Call, only.

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 (and we concur) 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.

On the Deposition Front: Late last week, the Illinois Supreme Court entered an order temporarily amending Supreme Court Rule 206 to ease the requirements for remote depositions. The amended Rule is effective immediately and in relevant part notes “Where a deponent testifies from a remote location and no neutral representative or representative of an adverse party is present in the room with the testifying deponent, care must be taken to ensure the integrity of the examination. The testifying deponent may be examined regarding the identity of all persons in the room during the testimony. Where possible, all persons in the room during the testimony should separately participate in the videoconference. In furtherance of their obligations under Illinois Rules of Professional Conduct 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), and 8.4(d) (Misconduct), counsel representing a deponent should instruct the deponent that (a) he or she may not communicate with anyone during the examination other than the examining attorney or the court reporter and (b) he or she may not consult any written, printed, or electronic information during the examination other than information provided by the examining attorney. Unrepresented deponents may be similarly instructed by counsel for any party.”

KCBA Attorneys continue to work to complete depositions as agreeable to continue to move matters toward some successful conclusion. We are also seeking June hearing dates as allowed to continue to attempt to move the litigated cases to conclusion in the interests of our clients.

This article was prepared by Shawn R. Biery.  If you have any questions about current procedures, need an Illinois Rate Chart, or a handy reference guide to COVID Investigation and exposures, feel free to contact Shawn at sbiery@keefe-law.com.

Synopsis: False Identity Claim Causes Confusion and IL WC Commission Considers Additional Evidence After Record is Closed. Research and comment by John Karis, J.D.

Editor’s comment: The IL WC Appellate Court recently affirmed the IL WC Commission’s decision to consider the transcript from an earlier claim under a different name which aided in the disposition of the case where claimant admitted that he used a stolen identity.

In Centeno v. Illinois Workers' Compensation Comm'n, Claimant Centeno, filed an Application for Adjustment of Claim pursuant to the IL Workers’ Compensation Act seeking benefits for injuries he allegedly sustained on October 7, 2010, while in the employ of respondent, Minute Men of Illinois. Following a hearing pursuant to section 19(b) of the Act, the arbitrator found claimant’s injuries to be compensable and awarded him TTD benefits, reasonable and necessary medical expenses, and prospective medical care. The Illinois Workers’ Compensation Commission (Commission) reduced the award of medical expenses but otherwise affirmed and adopted the arbitrator’s decision and remanded the matter for further proceedings. On judicial review, the Circuit Court of Kane County increased the weekly TTD rate but otherwise confirmed the Commission’s decision.

While Centeno’s first case was pending in the IL Appellate Court, Claimant filed a successive “Petition for an Immediate Hearing” pursuant to section 19(b) of the IL WC Act. At the hearing on the section 19(b) petition, Respondent elicited testimony from claimant, suggesting that he had been employed under two different identities. Claimant admitted that he used the stolen identity of “Nelson Centeno”. It was also determined he filed a separate WC claim under “Robert Morales” against Countrywide Insurance alleging injuries to his back and legs from a lifting accident on August 7, 2014.  Thereafter, claimant’s attorney requested that the proceeding be bifurcated due to a “breakdown” in the attorney-client relationship that made him question whether he could ethically remain as claimant’s counsel. The arbitrator granted the request. When the hearing resumed a month later, claimant’s attorney announced that he would continue representing claimant but moved to withdraw the section 19(b) petition. The arbitrator denied the motion to withdraw and heard additional evidence. Ultimately, the arbitrator declined to award claimant any benefits subsequent to the first section 19(b) hearing.

Claimant sought review of the arbitrator’s decision before the Commission. The IL WC Commission issued a decision and opinion on review, affirming and adopting the decision of the arbitrator and remanding the matter for further proceedings. The Commission in their decision commented on the disingenuous actions of claimant Nelson Centeno a/k/a Roberto Morales. It was noted Centeno filed a second claim under the name Roberto Morales. It was noted because of this admission, these two cases were so inextricably intertwined that the transcript in the Morales claim and the transcript in the Centeno claim would have to be considered together. The IL WC Commission in their decision amended the Application for Adjustment of Claim filed in the Nelson Centeno case and the Application for Adjustment of Claim filed in the Roberto Morales case, sua sponte, to reflect the name Nelson Centeno a/k/a Roberto Morales. The Commission also attached Arbitrator’s Decision and considered the transcript from the Roberto Morales case as an exhibit to the record.

The Commission noted that during oral arguments, claimant sought enforcement of the first arbitrator’s decision, along with TTD benefits and penalties for nonpayment of medical expenses. The Commission noted that the proper venue to seek enforcement of a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act

On judicial review, the circuit court confirmed the decision of the Commission. Claimant appealed to Appellate court arguing the Commission’s decision is “null and void” because it exceeded its power by expanding the record on review to include trial transcripts and evidence from another case to support its decision. Claimant further argued that the Commission violated the law-of-the-case doctrine by erroneously concluding that it was without authority to award him the previously awarded medical bills, TTD and prospective medical.

The IL WC Appellate Court affirmed most of the Commission’s decision. They noted regarding the expansion of the record that Illinois courts recognize documents containing readily verifiable facts from sources of indisputable accuracy may be judicially noticed if doing so will aid in the efficient disposition of a case. Public documents are included in the records of courts and administrative tribunals are subject to judicial notice. In the instant matter, the Commission attached to its decision on review the arbitrator’s decision in the Morales case and considered the transcript from that case. The Appellate Court noted this information was readily verifiable and aided in the efficient disposition of the case by providing “a full understanding of the dishonest nature of claimant, i.e., that claimant admitted that he used the stolen identity of someone named “Centeno.”

The Appellate Court also affirmed the Commission’s finding the proper venue to seek enforcement of a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act. They noted the Commission, as an administrative body created by legislative enactment for the purpose of administering the Act, lacks the inherent powers of a court and can only make such orders as are within the powers granted to it by the legislature. The only method provided by the Act for enforcing a final award of the Commission is in the circuit court pursuant to section 19(g) of the Act.

We do not believe this case sets the precedent for considering transcripts from all other trials after the record is closed. What it does show is how in certain situations such as identity fraud it can allow the Arbitrators, Commission and reviewing courts to consider evidence after the fact. However we do not believe this applicable in all situations and will have to be assessed by a case by case basis.

This case also shows once again the only venue to enforce an award is circuit court and not the IL WC Commission. As the Appellate Court noted the Commission is limited in its abilities based on the power they have been granted by legislature.

This article was researched and written by John Karis, JD. You can reach John 24/7/365 for questions about general liability, employment law and workers’ compensation at jkaris@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:

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

4-27-2020; Gene Keefe on the End of the Covid-19 Presumption, Learning From IN WC and Counter-Attacking This Awful Disease and the Ones To Follow; Kevin Boyle, JD on IN WC and Covid-19; and more

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:

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

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:

• 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.