11-29-2021; Covid-19 and Its Late-comer Mutants Are Staying for Now—What is Happening in IL Work Comp/OccDisease; Understanding IL WC Status calls and more

Synopsis: Covid-19 and Its Late-Comer Mutants Are Staying for Now—What is Happening in IL Work Comp/OccDisease.

Editor’s comment: Decisions from IL WC arbitrators indicate the “presumption” of coverage for Covid-19 exposure/illness should be rebuttable, if done so carefully. Early results indicate Illinois employers and insurers might be able to rebut the presumption making COVID-19 or its new mutations compensable by providing

• Evidence of employer efforts to mitigate the spread of the disease in the workplace;

• A contact history of other folks to whom the worker might have been exposed in the workplace;

• Documentation of the worker working from home or outside the traditional workplace;

• Use of PPE or personal protective equipment by the worker.

Please note my view Covid-19 is, to some extent, an all-or-nothing-at-all WC-OD claim. Some folks who test positive for Covid-19 have little to no side-effects and return to full health rapidly. Some folks can be very, very ill and/or pass from this awful bug. The nature of such serious WC-OD claims can be devastating with six and seven-figure reserves.

Last year, Gov. Pritzker signed House Bill 2455, creating a presumption COVID-19 is compensable for anyone in an “essential business” with more than 15 employees. Most observers feel the definition of essential businesses is so encompassing it includes almost all IL employees.

This bill allows employers and insurance carriers to rebut the presumption of Covid-19 infection when:

§  Claimant worked away from your normal workplace for 14 or more consecutive days immediately prior to getting sick.

§  The employer used workplace sanitation, social distancing and health and safety practices for at least 14 days prior to the claimed injury.

§  Claimant was exposed to the Covid-19 by a defined source outside employment.

Please also note Illinois is a one-party liberal state and by all appearances is going to remain a one-party state for a generation or more due to what I feel is our impossible-to-fund-fake government pensions. In a one=party state, I feel it is going to be challenging to get a defense decision without overwhelming evidence of infection outside the workplace.

The first reported IL WC-OD decision addressing the presumption and coverage for a Covid-19 infection, was filed October 2021. You may note, from the media report I have reviewed, it appears the employer lost the dispute.

Claimant worked as a computer operator, and the employer met the wide IL WC-OD definition of an essential business (I am unsure what is “essential” about operating a computer). Claimant tested positive for COVID-19 in April 2020 and claimed he was exposed to coronavirus at an on-site work meeting earlier in April. The employer argued they implemented safety measures, including sanitation and handwashing stations, and encouraged workers to maintain social distancing. The company also said it was possible Claimant, who was in the company of his family, could have been exposed outside the workplace via family and friends.

The employer presented evidence at the time the worker got sick, between 10-15% of its staff had COVID-19. The infection rate across the County was triple that percentage but there still was evidence the bug was present in the workplace in question.

The arbitrator noted evidence the employer implemented workplace efforts to reduce transmission, and confirmed that evidence could be sufficient to rebut the presumption. However, the arbitrator also found there was no evidence the employee had direct contact with the virus outside of the workplace and that it was more likely than not that he was exposed to the disease through employment. Benefits were awarded.

The defense team at KCB&A has a number of Covid-19 claims pending that we are aggressively handling in the best interests of our clients. We/I am happy to consult on a set of facts without charge—simply reply.

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

Synopsis: Understanding IL WC Status Calls by Mike Palmer, J.D. and Eugene Keefe, J.D.

Editor’s comment: We’ve received many questions from our clients and friends asking how exactly an Illinois Workers’ Compensation “status call” works. In sum, the status calls are the lifeblood that drives closure of IL workers’ compensation files.

There are approximately 29 Arbitrators at the Illinois Workers’ Compensation Commission, with more on the way after recent appointments from Governor Pritzker. Once a case is filed with the IWCC, it is randomly assigned to an IL WC Arbitrator in the relevant area of our State. Somewhere around 35,000 new cases are filed annually in this State so with a “shelf-life” of about three years, there are about 100,000 or so in the works at any given time.

Once the computer puts the matter on the Arbitrator’s status call, it goes on a calendar, which runs every 90 days. For 2-1/2 years, the matter will roll over without either side needing to getting engaged, other than an emergency petition. The status call calendars can be readily accessed online via the IWCC’s great website—go to https://www2.illinois.gov/sites/iwcc/resources/Pages/calendars.aspx

Attorneys on both sides can elect to file a motion for hearing at the call, whether it be a Petition for Immediate Hearing under 19(b) or 19(d), a regular Request for Hearing, Motion to Dismiss, Motion to Withdraw or any other relevant motion. To our understanding, you can’t try a claim without a pretrial first.

Please also remember before most hearings/settlements, claims, legal and risk handlers in this State need to drive claims to MMI with claimant back to some sort of work, if and when possible. IL WC cases tend to sit longer until MMI and RTW are reached. Happy to explain or help with a given claim, send a reply.

An IL WC claim has a shelf life of three years before it is “above the redline”, which means the case has to start to reach disposition--it must have a hearing, be dismissed or be settled. These older cases take priority in getting a date before the Arbitrator, along with 19(b) Motions. However, since the Covid-19 Pandemic began, the redline has not been strongly enforced, leaving many cases sitting. We have been advised the redline will begin being enforced again starting November 1, 2021.

If the claim does not receive a hearing date or if it actually received a hearing date that was later determined to be not needed, it is what we call “returned to the call”. This means no action will be taken until the next cycle of status calls. Often a case will receive a pretrial date and the parties will work out issues prior to the pretrial and return the case to the call. If the case proceeds to pretrial, the parties discuss the claim before the Arbitrator and seek to resolve the issue at hand.

Please note the stallers and grinders on the Claimant side will always claim they “need medical records/bills” and can’t be prepared to try/settle their claims. There are any number of IL Claimant lawyers who assert this as a reason for endless continuances. What KCB&A lawyers do when we hear this dodge is to ask what doctors/records/bills are needed and we go after the bills/records to then share electronically with our clients and the attorneys on the other side.

As noted, the redline begins to be enforced next month. This will be great for Respondent attorneys looking to move files that have been languishing since the beginning of the pandemic as a result of inactive Petitioner’s attorneys.

Happy to discuss any aspect of this email topic and/or IL WC status calls. This article was researched and written by Mike Palmer, J.D. and your editor. Mike can be reached at mpalmer@keefe-law.com. Or just send a reply.

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

10-17-2021; Appellate Court Surprise! IL WC Parking Lot Fall-Downs Can Be Defended; John Campbell and Shawn Biery to Present for the IL State Chamber Tuesday--Don't miss it! And more

Synopsis: IL WC Parking Lot Fall-Downs Can Be Defended and Won.

Editor’s comment: In Vaughn v. IWCC and Memorial Medical Center, our IL Appellate Court, WC Division outlined a clear path for a parking lot/curb fall down claim to be defended and won.

In this opinion, the parties stipulated claimant fell in a parking lot on Memorial’s premises and suffered injuries. The arbitrator admitted into evidence various photographic exhibits depicting the condition of the sidewalk, curb and slanted asphalted surface where claimant stepped, stumbled and fell. To my understanding, the photos indicated the curb, sidewalk and asphalt were in ordinary condition and there was no indication of defects or foreign objects/substances that would increase the risk of injury. For risk and claims managers, it is crucial to have such documentation in all your WC claims.

Claimant was 60 years old at the time of the accident and testified to the following. 

• On October 29, 2015, claimant was employed by Memorial as a central processing technician.

• She testified her job duties included assembling and wrapping trays used to sterilize surgical equipment.

• She was required to load several trays, weighing 10 to 15 pounds, onto carts before pushing the carts into an autoclave. The carts were typically heavy, weighing as much as 300 pounds.

• Claimant also emptied trash and laundry bags, weighing up to 20 pounds.

On the morning of the incident, claimant had clocked out for the day. She exited the medical center through an employee door, as previously instructed by her immediate supervisor. Upon exiting, claimant, accompanied by a co-worker, began walking on the sidewalk toward her assigned parking lot. Claimant claimed the sidewalk in that area was not commonly used by members of the general public—not sure what that might mean. 

Claimant next described the following events leading to her fall:

Well, I was walking out and it looked to me like the concrete on the sidewalk met even with the blacktop but it didn’t, and it was about an inch and-a-half to two inches, and I stepped down normal like I was just walking and it made me trip and I stumbled. And when I fell, I hit the lip of concrete that is about 2, 2 and-a-half feet away from there. I landed on my knee.

Additionally, at the time of her fall, claimant testified it was still dark outside, and the temperature was at or near freezing. She also testified that outside lights, located on nearby buildings and landscaping, illuminated the area where she fell. However, at the time of her fall, one of the lights was not working and others were partially obscured by a parked security van, which resulted in a shadow that made that area darker.

Claimant next identified a photograph which showed the sidewalk, curb and slanted blacktop area where claimant fell. Claimant testified that, as she stepped off the curb with her left foot, her foot did not “land like it was supposed to,” causing her to trip, stumble and fall. Claimant further testified that the darkness made the sidewalk and the blacktop appear even, or “level.” 

Claimant suffered a comminuted fracture along the inferior aspect of the patella or knee cap. This is a serious injury.

Claimant underwent corrective surgery to her right knee and she later returned to work with restrictions. Claimant testified she began experiencing difficulty performing her work-related duties, which required prolonged periods of standing, lifting trays and pushing heavy carts. Claimant accepted an alternate position with Memorial that paid approximately $2.17 less per hour but involved lighter lifting and preparing linen packs. Claimant further testified regarding the lingering issues resulting from her knee injury. Claimant used a cane while walking to and from her work building, because the path to her particular building requires her to traverse a hill. Additionally, her knee was generally stiff and occasionally popped, which temporarily relieved the stiffness.

On cross examination, claimant admitted that she was permitted to park in any of the employee parking lots, but it was suggested that she park in Lot #3. Additionally, claimant admitted she was permitted to use any entry door, but it was suggested that she use the closest door. Claimant acknowledged that two public sidewalks leading to the employee parking lot were available for her to use. Claimant was familiar with the area, sidewalks, buildings and available entry ways because she initially worked as a “traveler” at Memorial from January 2015 through June 2015. Claimant admitted that she was cutting across the walkway at the time of her fall, rather than walking farther down the sidewalk and turning to use the nearby access ramp. Claimant admitted that she had traversed the area many times over a span of several months and had stepped off the same curb before but in different places. Claimant further admitted the area where she fell was clear of rocks, debris, water, snow, ice, holes or other surface-type defects. 

The arbitrator found claimant sustained an accidental injury. In rendering his decision, the arbitrator relied on precedent which the arbitrator believed involved a similar fact pattern. The arbitrator found that claimant had encountered a hazardous or defective condition, an uneven surface while she was walking to an employee parking lot immediately after leaving work. The arbitrator concluded claimant’s risk of tripping presented a neutral risk, which was somehow greater than that encountered by the general public. Accordingly, the arbitrator awarded claimant TTD, medical bills and PPD.

The claim was appealed to the Commission panel. The Commission issued a decision unanimously reversing the arbitrator’s decision. The Commission panel found the arbitrator’s findings of hazard or defect and determination that claimant’s injury arose out of her employment were both erroneous, noting that the arbitrator’s reliance on precedent was misplaced. The Commission observed the height differential between the sidewalk and the asphalt where claimant fell was by design, not a defect. The Commission, stressing its agreement with Memorial’s argument, stated: 

[C]ommon sense dictates that sidewalk slabs should be even or at the same height; whereas curbs are, by nature, raised boundaries. Thus, demonstrating height differences between slabs within the same sidewalk evidences defectiveness; where demonstrating height differences between the curb and the area it borders does not. 

Again, the Commission determined that, unlike the Litchfield precedent cited the photographs, admitted into evidence by both parties (depicting the parking lot, sidewalk, asphalted area and purported spot of claimant’s fall), “show that the premises were neither defective nor hazardous.” In particular, the Commission found that “the height differential (diminishing towards the access ramp at the end of the sidewalk) between the curb and the blacktop was by design (emphasis added by me) and not a defect.” The Commission, instead, noted claimant’s case was factually similar to the circumstances in Caterpillar Tractor Co. v. Industrial Comm’n.

Claimant sought judicial review of the Commission’s decision in the circuit court. The circuit court judge affirmed denial. Claimant appealed to the IL Appellate Court, WC Division.
 

The Appellate Court confirmed Injuries sustained on an employer’s premises, or at a place where claimant might reasonably have been while performing her duties, and while a claimant is at work, or within a reasonable time before and after work, are generally deemed to have been received in the course of employment, citing Caterpillar Tractor Co. The focus shifted to the “arising out of” requirement. 

The Court further ruled when an employee is injured on the usual route to the employer’s premises and there is a special risk or hazard on the route, the hazard becomes part of the employment. Quoting the decision: “Special hazards or risks encountered as a result of using a usual access route satisfy the ‘arising out of’ requirement of the Act.”

The Appellate Court noted the Commission’s finding claimant “stumbled over a curb” is entirely consistent with the evidence adduced at the arbitration hearing. Accordingly, they found the Commission’s finding as to the nature of the accident is not against the manifest weight of the evidence. 

In short, despite the confusion caused by the McAllister ruling where the act of an employee simply standing up somehow could comprise a compensable accident, this ruling adheres to the plain language of the IL WC Act—for an accidental injury to be compensable, it has to both “arise out of” and occur “in the course of” employ.

Please note the employer did what I feel was an excellent job investigating and photographing the area where the injury occurred. The defense team at KCB&A has a presentation to help your company improve their incident/event investigation to either document compensability or provide you the tools to fight a questionable claim—if you are interested, send a reply.

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

9-28-2021; Federal Vaccine Mandate appears on a Collision Course with State Statute by John Campbell; Changes Coming at IL WC Commission and more

Synopsis: Federal Vaccine Mandate appears on a Collision Course with State Statute; U.S. Employers stuck squarely in the middle! Research and Comment by John P. Campbell, J.D.

Editor’s Comment: On Sept. 9, 2021 President Biden signed the “Path out of the Pandemic” pursuant to Executive Order.  This plan included a series of directives compelling Covid vaccination of employees, some of which appear, at least at first glance, to be in direct contradiction to Illinois State law as well as similar state statutes around the nation.

This Federal directive will be enforced by the Department of Labor’s Occupational Health and Safety Administration (“OSHA”). OSHA shall develop an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to mandate that their employees be vaccinated against COVID-19 or be subject to weekly testing. Employers are also required to grant employees paid time off to get vaccinated and recover from side effects associated with the vaccine. The effective date remains unclear, but we know OSHA is charged with enforcing any ETS and OSHA is empowered to dispatch fines of up to $14,000 per violation!

Hey, can they do that??

Well, according to Federal law, yes. Since May 28, 2021, the EEOC has repeatedly declared that Federal employment laws do not prevent an employer from requiring all employees who enter the workplace to be vaccinated for COVID-19. That said, employers must still comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964. As an example, an employee may have a medical condition which places them at high risk for an adverse reaction to the vaccine. As a result, the employee may be under medical direction to forego the shot. In such instance, proof of this medical prohibition from the vaccine would warrant “reasonable accommodation”, perhaps in the form of weekly testing for Covid-19.

Inapposite to this directive, Illinois has a long-standing statute which appears to directly conflict with the Presidential Mandate to compel employee vaccination.

The Illinois Health Care Right of Conscience Act. (745 ILCS 70/2) declares in relevant part:

It is the public policy of the State of Illinois to respect and protect the right of conscience of all persons who refuse to obtain, receive or accept…medical care whether acting individually, corporately, or in association with other persons; and to prohibit all forms of discrimination, disqualification, coercion, disability or imposition of liability upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in …refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care.
(Source: P.A. 99-690, eff. 1-1-17.)

Sec. 7. Discrimination by employers or institutions. It shall be unlawful for any public or private employer, entity, agency, institution, official or person, including but not limited to, a medical, nursing or other medical training institution, to deny admission because of, to place any reference in its application form concerning, to orally question about, to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant, in terms of employment, admission to or participation in any programs for which the applicant is eligible, or to discriminate in relation thereto, in any other manner, on account of the applicant's refusal to receive, obtain, accept, perform, counsel, suggest, recommend, refer, assist or participate in any way in any forms of health care services contrary to his or her conscience.
(Source: P.A. 90-246, eff. 1-1-98.)

First, we must point out that the statute defines “conscience” as a sincerely held religious belief. Proving (or dis-proving) an individual’s stated religious belief is somewhat like judging art… far more subjective than objective, making employer assessments on this issue extremely challenging. Those with strict religious beliefs, may for example, assert an objection that aborted fetal tissue was used in the testing of the vaccine (not contained in the vaccine as erroneously alleged initially). How is an employer supposed to measure the sincerity of such an assertion of an employee, especially considering the statutory language above?

We note at first glance, the broad Presidential Mandate compelling vaccination appears in contradiction to this State Statute. However, the Presidential Mandate will be subject to exemptions for individuals who cannot receive a COVID-19 vaccine due to a disability or “sincerely held religious belief.” Therefore, the Presidential Mandate offers a narrow exception that seems to fit squarely with the intended purpose of the Illinois Statute to protect sincere religious beliefs against vaccination. While this resolves the potential conflict of laws, it does nothing to help guide employers struggling with implementation and compliance.

Also, note that the President’s Mandate offers an alternative option for those who do not want to get the jab. Weekly Covid-19 testing is an accepted (albeit discouraged) alternative to vaccination. This would prove burdensome for many, but for those who do not have a religious objection but rather, simply hold concern for the long-term efficacy and safety of a new vaccine, there is an option to be tested regularly.

Nevertheless, open questions remain:

• Who will pay for weekly testing?

• Will the store-bought tests suffice?

• How will vaccination records be stored?

• What about boosters and requiring perpetual medical updates from employees?

• If a medical disability is declared and/or medical basis for refusing the vaccine, does the ADA interactive process have to take place in each case?

The ink is not dry on this Presidential Mandate, so there are no firm answers yet. Our best advice to employers with 100 or more workers is to make every effort to walk the tight-rope strung before you. Explain to employees that there is a Presidential Mandate for vaccination, enforced by OSHA which you are compelled to ask employees to comply. If they do not comply, explain your obligation at the direction of the Federal Government, and their addition obligation as an employee to outline a valid, sincere conscientious objection to the vaccine or in the alternative, provide weekly proof of updated negative Covid-19 testing.

This article was researched and written by John P. Campbell, Jr., Managing Partner at Keefe, Campbell, Biery & Associates, LLC. You can reach John to discuss or for comments at jcampbell@keefe-law.com.

Synopsis: Changes Coming at IL WC Commission

Editor’s comment: You almost need a scorecard to keep track of all the incoming and outgoing IL WC hearing officers. Please note they all quietly got significant raises this year with guaranteed annual bumps to now be linked to a percentage of the compensation of Illinois’ very well-paid judiciary. If you look online, I don’t believe there are any WC hearing officers in any other state of the U.S. that get paid anything close to our IL WC team.

Judicial Appointment/New Commissioner

Former IL WC Arbitrator Carolyn Doherty has been appointed by Governor JB Pritzker to fill the unexpired term appointment of former Commissioner Barbara Flores.  Flores was appointed as an Associate Judge of the Circuit Court of Cook County effective October 3, 2021.  

Ms. Doherty will assume this new position, of Commissioner, effective October 4, 2021.  Commissioner Doherty will serve as the Public Member on Panel C.

Arbitration Assignments

Roma Parikh Dalal will take over the Zone 4 Call previously assigned to former Arbitrator (now Commissioner) Carolyn Doherty, effective October 4, 2021.

Please take notice that effective November 1, 2021, the following Arbitrators will take over the following Monthly Status Calls:

• Kurt Carlson will take over the Zone 3 Call previously assigned to former Arbitrator Melinda Rowe-Sullivan.

• Nina Mariano will take over the Cook County Call previously assigned to Arbitrator Kurt Carlson.

• Ana Vasquez will take over the Cook County Call previously assigned to former Arbitrator (now Commissioner) Christopher Harris. (TBA 1).

• Antara Nath Rivera will take over the Cook County Call previously assigned to former Arbitrator Douglas Steffenson.

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