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

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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.