6-1-2020; IL Medical Care Providers Cannot “Lien” An IL Worker's Claim or Settlement To Recover Unpaid Medical Bills; Contact Tracking Apps May Be Inexorably Coming to the U.S. and World Workplace

Synopsis: IL Medical Care Providers Cannot “Lien” An IL Worker's Claim or Settlement To Recover Unpaid Medical Bills.

Editor’s comment: In their ruling in In Re Hernandez, No. 124661, our Illinois Supreme Court followed longstanding precedent to rule a pending WC claim and the proceeds of an IL workers' compensation settlement are not amenable to liens or claims by medical providers who treated the illness or injury.

The facts indicate between 2009 and 2011, Claimant Hernandez sustained on-the-job injuries and received medical treatment from Ambulatory Surgical Care Facility, Marque Medicos Fullerton LLC, and Medicos Pain and Surgical Specialists S.C.

In December 2016, she filed a Chapter 7 bankruptcy petition in the U.S. Bankruptcy Court for the Northern District of Illinois. She reported she owed

• $28,709.60 to Ambulatory Surgical,

• $58,901.20 to Marque Medicos Fullerton, and

• $50,161.26 to Medicos Pain and Surgical Specialists.

You will note these medical bills total $137,772.06.

Claimant Hernandez reported minimal assets, listing $1,300 in bank accounts, some inexpensive jewelry, and her pending workers' compensation claim, which she valued at $31,000.

Two days later, Hernandez settled her claim for $30,566.33 or 7.5% BAW. You will also note the unpaid bills were around 4 times the amount the claim settled for. The settlement was approved by Arbitrator Kane. Claimant entered into the settlement without consulting the bankruptcy trustee because she believed the full amount of her settlement was exempt under Section 21 of the IL Workers’ Compensation Act.

Section 21 generally provides no payment under the IL WC Act shall be assignable or subject to most liens or be used in any way for most debts, penalties or damages. The three medical providers, Ambulatory, Marque Medicos Fullerton and Medicos Pain protested, and a bankruptcy court judge found Hernandez’s settlement proceeds were not off-limits to the named care providers.

Claimant Hernandez appealed to the U.S. District Court for the Northern District of Illinois. A judge affirmed and Hernandez sought review by the U.S. 7th Circuit Court of Appeals. The Seventh Circuit is the penultimate step before a case might go to the U.S. Supreme Court. The parties agreed Section 21 historically placed workers’ compensation awards beyond the reach of creditors in bankruptcy proceedings, but they disagreed as to whether the rule remained true after the IL WC Act was amended in 2005.

The 7th Circuit noted neither the Illinois Appellate Court nor the Illinois Supreme Court has addressed the effect of the 2005-2006 Amendments to Section 21, so it certified the issue/questions to the Illinois Supreme Court.

The Illinois Supreme Court noted federal bankruptcy laws contain provisions specifying what property may be claimed as exempt, but an individual may “opt out” of the exemption scheme. Illinois has exercised the option, which means that in federal bankruptcy proceedings, state residents are restricted to exemptions granted by state law. For purposes of determining whether property is exempt under Illinois law, the IL Supreme Court said the critical inquiry is simply whether the provision unequivocally protects the identified property against all forms of collection.

Section 21 of the IL WC Act expressly provides any payment, award or decision under the Workers’ Compensation Act is generally free from claims to satisfy debts, the opinion said. The IL Supreme Court confirmed there are a few statutory exceptions to Section 21, including one allowing the beneficiary of a deceased employee who was a member or annuitant under Article 14 of the Illinois Pension Code to assign benefits payable under the Act to the State Employees' Retirement System. The General Assembly has also created an exception to Section 21 to allow workers’ compensation recoveries to be fully subject to unpaid child support monies due. The IL Supreme Court said the provisions demonstrate, when the IL General Assembly intended to create an exception, it expressed its intention in language so clear and explicit that it could not be misunderstood.

“No similarly explicit exception for claims by health care providers appears in the Workers' Compensation Act itself or in any other Illinois statute,” the Supreme Court opinion states.

The health care providers' claim to an exception to Section 21's exemption rests exclusively on the 2005 amendments to the Workers’ Compensation Act. The amendments changed the amount of compensation due employees for accidental injury not resulting in death, and created fee schedules limiting the amount that can be collected for treating compensable injuries. The providers argued an exception to Section 21 for claims by health care providers was somehow “implicit” in the statutory changes, but the Supreme Court was not persuaded.

“The repeal or amendment of statutes by implication is not favored,” the court’s opinion said. “Had the legislature intended to alter the clear and unambiguous provisions of Section 21 by conferring on health care providers a new exception to the exemption, it would have had to indicate a clear intent to do so.”

While one of the 2005 amendments allows health care providers to seek payment directly from an injured employee for outstanding bills, plus interest, following a final compensation award, judgment or settlement, the Supreme Court said the change does not permit health care providers to look to the proceeds as a source of payment.

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Synopsis: Contact Tracking Apps May Be Inexorably Coming to the U.S. and World Workplace.

Editor’s comment: As I have advised my readers, we are not in the first world pandemic and this isn’t going to be the last. The cost of this pandemic has bankrupted various businesses and will be a continuing challenge for all of us in the work comp arena. As I have advised the least expensive WC/OD-related death in IL work comp can be worth over $700K and the top is several million dollars. As we can all tell from what is happening across the globe, pandemics are life-changing events.

How Do Companies and Local Governments “Defend” OccDisease Claims?

In short, we are going to go “analog” to try to track human contacts who might have infected a worker. As a risk or claims manager you would simply ask the sick worker where they have been and who they have been with. You then have to see who might have infected your worker(s), if you can get cooperation from the folks you poll. To me, this is cumbersome and allows for what I will call “fudging.”

On the other hand, a “digital” approach is called “Contact Tracking Apps.”

As the covid-19 pandemic rages, technologists everywhere have been rushing to build apps, services, and systems for contact tracing: identifying and notifying all those who come in contact with a carrier. Some are lightweight and temporary, while others are pervasive and invasive: China’s system, for example, sucks up data including citizens’ identity, location, and even online payment history so local police can watch for those who break quarantine rules. Americans and lots of other folks across the globe don’t want their privacy invaded.

Some services are being produced locally by small groups of coders, while others are vast, global operations. Apple and Google are mobilizing huge teams to build their upcoming systems that notify people of potential exposure, which could be used by hundreds of millions of people almost immediately.

Opinions differ on whether these apps are just a technocratic daydream or—if done correctly—a potentially useful supplement to manual tracing, in which human workers interview people who’ve been diagnosed with Covid-19 and then track down their recent contacts. But the reality is that these services are already rolling out, and many more are likely to come in the next few months.

Despite the avalanche of new tech, we know very little about them or how they could affect society. How many people will download and use them, and how widely used do they have to be in order to succeed? What data will they collect, and who is it shared with? How will that information be used in the future? Are there policies in place to prevent abuse?

When comparing apps around the world, you will learn there was no central repository of information; just incomplete, constantly changing data spread across a wide range of sources. Nor was there a single, standard approach being taken by developers and policymakers: citizens of different countries were seeing radically different levels of surveillance and transparency.

MIT Database

The geniuses at MIT are seeking to create a database with a compendium of information about contact tracing apps. It is easy to find with a simple Google search.

If you’d like to know more about automated contact tracing and exposure notification, here are a few relevant papers and documents.

Outpacing the Virus: Digital Response to Containing the Spread of COVID-19 while Mitigating Privacy Risks (Harvard Center for Ethics)

COVID-19 Rapid Evidence Review: Exit through the App Store? (Ada Lovelace Institute)

Contact Tracing Mobile Apps for COVID-19: Privacy Considerations and Related Trade-offs (Cho, Ippolito, Yu)

PACT: Private Automated Contact Tracing (MIT)

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

5-27-2020; The Rebuttable Presumption Returns to Illinois Workers’ Comp for Covid-19 Claims!; The IL WC Commission June Special Circumstance Arbitration Rules Are Announced and more

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

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

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

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

The key provisions will include:

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

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

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

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

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

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

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

Other clarifications include the following

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

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

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

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

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

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

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

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

The highlights include:

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

  • Only actual trials and pro se approvals require appearances

  • There will not be Emergency Arbitrators sitting any regular schedule

  • Chicago pro se approvals will occur only on Wednesdays

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

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

  • Trial times will be staggered and assigned to avoid overcrowding

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

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

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

  • All pre-trials will occur via Webex

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

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

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

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

Synopsis: The “Nuts and Bolts” of Investigating OccDisease Claims with a Specific Focus on this Pandemic and New Rules Mentioned Above—Consider Asking Shawn R. Biery, J.D. for His OccDisease Investigation Protocol.

Editor’s Comment: Shawn R. Biery of Keefe, Campbell, Biery & Assoc understands the challenges this crisis has brought to you and your claims management protocols. Suddenly, we are all being asked to figure out when/where and how someone contracted a life-threatening disease which comes with possible 7-figure OD claims exposure. To understand the risks and costs, please remember Shawn regularly updates his Illinois WC Rate Sheet—if you want a copy, send an email to Shawn or his great assistant Marissa Patel at mpatel@keefe-law.com

What Shawn has begun to detail are crucial investigation materials which you might want to consider--his new OccDisease Investigation protocol to allow you to:

1. Investigate and verify OccDisease claims for emergency workers covered under the new Rules promulgated by the IWCC;

2. Investigate and verify claims for other workers possibly not covered by the Rules and

3. Insure you have a strong basis to accept or deny OccDisease benefits in settings that may come at you and your company very rapidly.

We are constantly working to update the potential investigation protocols. Please again note, as we outline above, any Covid-19 exposure may come with 7-figure risk/reserves on a per claim basis—this is possibly a business-busting concept.

Please also make note, if you don’t diligently investigate, even without a presumption, our IL WC Commission may rule any Covid-19 claim is going to be adjudicated to be compensable.

Those supervisors, managers and adjusters who are now becoming OccDisease investigators will need the following skills:

Interviewing – the ability to draw out the relevant information through effective questioning

Communication (verbal and written) – the ability to interact effectively with injured persons, witnesses and suspects, as well as other investigators, and to communicate the findings of the investigation to a wide variety of individuals and organizations

Technical competence – the awareness of safe working procedures that should be adopted, with particular relevance to the event under investigation

Hazard recognition – the ability to ensure workers and investigators are not exposed to unnecessary risk

Interaction – personal attributes that enable effective relations with other people

Deduction – the ability to scrutinize all the evidence obtained, e.g. through observation, from witnesses’ statements and from documentary evidence, and to form a coherent picture that enables the causal factors to be identified

If you want a copy or someone to consult with an OccDisease Investigations and Rules, feel free to contact Shawn at sbiery@keefe-law.com or John Campbell at jcampbell@keefe-law.com

5-18-2020; IL State Financial Crisis Brewing--When Will IL WC Commission Go Back to 'Virtual' Work?; IL State Chamber Asks Our Legislature to “Do No More Harm!!!” and more

Synopsis: State of IL Financial Crisis Brewing; When Will the IL WC Commission Go Back to “Virtual” Work?

The State of Illinois is going to be reaching a crisis in funding State government agencies, payrolls and expenses very soon, if not already. We assure you it isn’t a question of if there will be an IL State funding crisis—it is just a matter of how big and when that crisis will land.

During this crisis, IL State Tax collections across the board are certain to dramatically suffer, creating a gaping hole that won’t be easily filled in this State with the worst credit rating in U.S. history. There is a hope by Illinois and similar states that the Feds will generously offer a massive bailout. The problem is, other States with their fiscal house in order don’t want to flip the trillion dollar bill, and we can’t blame them. As some of the lawyers at KB&A are life-long Illinois residents, would we like our State totally bailed out from the debt/pension crisis? Well, sort of, yes. Is it fair to put decades of poor financial practices on the back of the rest of America? Of course not.

So, what do you want the State to do?

While the private sector is either forcibly closed or doing all they can to cut cost and survive, it seems very little is being done to shut down costs/expenses in any IL State department that anyone has heard of. Other States, counties and cities like Rock Island, IL are laying off non-essential workers, to our understanding. We don’t understand why our IL State and local governments aren’t running “skeleton crews,” maximizing online capabilities or shutting down like the private sector to save millions. After all, many of the respective government workers have very little to do during the shut-down.

The IL State department we are most familiar with is the IL WC Commission that may be innocently contributing to this situation. The annual cost/budget of the IWCC is $30M or more than $2M a month. The IL WC Commission is significantly shuttered without any layoffs that anyone is aware of. Other than limited emergency hearings, some telephone oral arguments, and telephonic status calls, there are not significant litigation efforts going forward and filings for Request for Hearings are significantly lower. Case filing has slowed significantly as well. There is no question they are almost certainly seeing less work during the entire month of May.

June, July, August—who knows when the regular functions of staff at all levels at the IWCC will come in full swing? The idea of a “shut down” but with full time/full employment of all state workers is troubling some observers.

Our Humble Suggestion:

The defense team for KCB&A doesn’t want layoffs at the Commission. To the contrary, we would like to see the Arbitrators and Commissions “virtually” return to their regular jobs and again start moving claims forward. This will require adjustments, of course. It is what private business does when blind-sided by unexpected challenges. For example, the Starbuck’s on our corner does not allow anyone inside and will not exchange money at all, for our afternoon coffee run. However, they have advertised and set up remote ordering and we are met at the door each afternoon with our coffee placed on an outside table for pick-up. That is how private business adjusts to this unprecedented crisis, and the IL WC Commission can do the same.

To be sure, the Chairman and Commissioners have already taken steps to function on a limited basis during this crisis and we applaud those efforts to have emergency hearings, keep pro-se approvals going and get settlement contracts approved. We can schedule emergency hearings and are also moving toward limited/agreed hearings next month as well. Let’s not stop there. We further advocate pre-trials and motions via conference call or Zoom, allowing preliminary work to be done in advance of trial. Pretrial discussion and recommendations are a great method to resolve disputes short of formal trial. Electronic filing and e-exchange of exhibits prior to trial can limit contact at hearings and the now well-established precautions for distancing can be taken to minimize contact risk for court appearances.

There are also nine IL WC Commissioners who handle administrative appeals in three panels of three. Each of them have two attorney-assistants. Let’s keep them working with conference call or Zoom oral arguments and motions. You may note the U.S. Supreme Court is holding online orals—why can’t every judicial and administrative hearing start again happening/working but online?

In our view, no attorney on either side with a valid and important IL WC administrative appeal is going to waive oral argument. At present, we understand there have been at least a few oral arguments via phone conference (Shawn Biery from our office argued and already received a Commission ruling during the shutdown). We have multiple pending appeals and encourage the continued setting of oral arguments in as many cases as possible. This provides the 27 lawyers who are either Commissioners or assistants to the Commissioners with an ability to work through any backlog and get cases decided.

As indicated above, all of this could be done online with Zoom meetings, phone conferences, FaceTime or some other electronic means. As we indicate above, we understand the U.S. and IL Supreme Court are using such technology to keep their docket moving. We should do the same at the IWCC, not just to justify the Commission payroll, but to also preserve the rights and interests of employees and employers in our industry.

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

Synopsis: KCB&A Joins With the IL State Chamber to Beseech Our Legislature to “Do No More Harm!!!”

Editor’s comment: The Illinois State Chamber confirmed our IL Legislature is returning to consider new laws in light of the current crisis. The State Chamber’s top legislative gurus have one message to returning lawmakers "DO NO MORE HARM!" We join with them and our readers to question/challenge our IL General Assembly's enactment of new mandates, new opportunities to sue employers, and new taxes on employers so as to add open and hidden costs that bring many IL businesses closer to shutting their doors and eliminating the jobs that result from the closure of that business.

Two issues our IL State Chamber feels will be considered during next week's IL Special Session are unemployment insurance and workers' compensation.

1. Unemployment Insurance: Three issues that need to be addressed to secure much needed federal funds for administration of the unemployment system by the Illinois Department of Employment Security are:

1) waiver of the benefit charges for individual employers due to COVID-19;

2) waiver of the one week waiting period for benefits to start; and

3) addition of 13 weeks of benefits past the 26 weeks of regular benefits.

1. Workers' Compensation: With the judicial victory and subsequent repeal of the Workers' Compensation Commission's emergency rule to broaden the rebuttable presumption for COVID-19, we expect the General Assembly will push for enactment of similar provisions in the statute. Preparing for a potential legislative solution, the State Chamber’s Employment Council staff with assistance from members of its Workers' Compensation Committee has prepared a legislative compromise to be introduced by Sen. John Curran (R- Willowbrook). We salute them for their hard work in trying to stay on the point with legislators.

The State Chamber’s proposed legislative compromise seeks several changes to the current law.

• Expands the current workers covered by the rebuttable presumption by:

  • Removing the five year requirement for firefighters, emergency medical technicians (EMT), emergency medical technicians-intermediate (EMT-I), advanced emergency medical technicians (A-EMT), and paramedics;

  • Adding law enforcement officers; and

  • Adding health care providers, nurses, or assistive employees employed in a health care, home care, or long-term care setting with direct COVID-19 patient care.

• Requires the employee to show contraction of COVID-19 by either a confirmed positive laboratory test or, if a test was not available, by the employee's physician's documented diagnosis based on the employee' symptoms.

• An employer is able to defeat the presumption if :

  • the employer provides evidence to support a possible finding that the employee's occupation was not a cause of the disease; or

  • if the employer shows that the employee's worksite followed the appropriate Centers for Disease Control (CDC) interim COVID-19 Guidance for Businesses and Employers and any updated changes to such guidance.

• Specifically provides an employee who has contracted COVID-19 but who fails to establish the rebuttable presumption is not precluded from claiming an injury.

• Provides the date of injury/exposure is the date that the employee was unable to work due to a diagnosis of COVID-19, or due to symptoms that were later diagnosed as COVID-19, whichever occurred first.

• Provides an employer shall be able to offset liability for temporary total disability (TTD) benefits for payments to the injured employee for:

1. paid leave due to COVID-19;

2. sick leave benefits or family medical leave benefits paid under the federal Families First Coronavirus Response Act; and

3. unemployment insurance benefits paid pursuant to the federal Families First Coronavirus Response Act.

• Requires the IL WC Commission to provide a detailed report on COVID-19 workers' compensation and occupational diseases claims to the Governor, members of the General Assembly and the Workers' Compensation Advisory Board by January 15, 2021.

• Provides for an effective date for the rebuttable presumption for employees who contracted COVID-19 on or after March 9, 2019 and until 30 days after the Governor's COVID-19 State of Emergency expires.

We ask our readers to consider joining the IL State Chamber, as they are the lead organization watching out for the needs of IL business. For more information, go to www.ilchamber.org.

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

Synopsis: When Will the Media Start to Actually Help Avoid/End Covid-19 Exposures?

Editor’s comment: Common sense thoughts from your Editor, Gene Keefe.

I am carefully watching the news approach on reporting of Covid-19. I consider it mildly hogwash and will explain why. They track the total number of infections, the number of deaths and the number of new cases. In my view, that simple and summary information isn’t helping and the media should start to focusing on helping folks avoid infections.

We all know about masks and gloves. Despite that common skill set, please note we had around 1500 to 4000 new cases a day this past week in Illinois. To me that is a staggering number given what we know about this bug and how to stop it. The only way to get infected that I am aware of is human contact. Right?

In contrast, Florida has around 30% or significantly less than our new cases with about 8 million more people in that State than Illinois—what are they doing that we aren’t???

And why isn’t someone trying to reach out to new Illinois cases and ask them for their spin on how they may have gotten the infection?

Please note the CDC website is the normal federal blur---I am not sure what they are doing and why/how. I don’t feel they are strongly effective based on current performance. Take a look at: https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html

If most infected people are asked, I am sure a number of people wouldn’t participate and you can’t force anyone to violate their federal HIPAA privacy rights.

But there is no harm in having the news media asking and reporting when infected people cooperate and give you their best thoughts on how they got this awful bug.

I am asking my readers who are willing to cooperate to let me know what the reported source of the infection is for your Covid-19 WC/OD claims. I don’t want the workers’ names and I won’t publish your name, unless you want me to. Also, feel free to confirm all your Covid-19 avoidance efforts so I can relay to the secret-powers-that-be who run the IWCC.

My focus is to use and publish data to start making sense of why 1,500-4,000 Illinoisans are getting newly infected each day in this about-90-day-old crisis and, along with distancing, masks and shields and other stuff, let’s tell people what to avoid.

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

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