On April 13, 2020, the Illinois Workers’ Compensation Commission through its rule-making authority added an Emergency subsection to its Rules of Evidence addressing the evidentiary burden in proving a claim for benefits under the Illinois Workers’ Compensation Act/Illinois Occupational Disease Act in a case of COVID-19 exposure. Below is a brief synopsis of this new rule and how this new rule is going to impact employers of essential workers.
Emergency Rule: Section 9030.70 Rules of Evidence:
In added section 9030.70(a)(1), the IWCC has indicated that in any proceeding before the Illinois Workers’ Compensation Commission where the injured employee is a “Covid-19 First Responder” or “Front-Line Worker” (as defined in the next subsection), if the injured worker sustains a COVID-19 injury, there is a rebuttable presumption that the injured workers’ exposure arose out of and in the course of the employee’s employment. There is also a rebuttable presumption that the injured workers’ condition is causally connected to the hazards or exposures of the injured workers employment.
In added section 9030.70(a)(2), “COVID-19 First Responder or Front-Line Worker” includes police, fire personnel, emergency medical technicians, paramedics, all individual employed and considered as first responders; health care providers engaged in patient care; correctional officers; and crucial personnel identified in various executive orders including grocery store employees; food, beverage and cannabis employee’s in production and agriculture; organizations that provide charitable and social services; gas stations and businesses needed for transportation; financial institutions; hardware and supplies stores; critical trades; mail, post, shipping, logistics, delivery, and pick-up services; educational institutions; laundry services; restaurants for off-premises consumption; supplies to work from home; supplies for essential businesses and operations; transportation; home-based care and services; residential facilities and shelters; professional services; day care centers for employees exempted by other executive orders; manufacture, distribution, and supply chain for critical products and industries; critical labor union functions; hotels and motels; and funeral services.
How this Rule impacts Employers of “Front-Line” Workers:
It is important to note that this is an evidentiary rule that shifts the burden of proof from the employee to the employer. In the case of COVID-19, this new rule states that if a “front-line worker” becomes infected with COVID-19, the presumption is the condition was contracted from his/her employment. At that point, the employer is not required to eliminate any occupational as a possible contributing cause of the employee’s COVID-19 condition. Rather, at that point, the employer must introduce some evidence of another potential cause of the employee’s COVID-19 condition. If such evidence is produced by the employer, then the Arbitrator/Commission would be free to determine the factual question of whether the occupational exposure was a cause of the employee’s COVID-19 based upon the evidence presented without the benefit of the presumption to the claimant.
As the rule is currently written, there is a large pool of employers that will have potential exposure for employees who contract the COVID-19 disease. Documentation and immediate investigation at the time an employer learns of an employee’s COVID-19 diagnosis will be imperative to properly evaluate the employer’s potential exposure for such a claim.
If an employer is found liable for an employee’s COVID-19 diagnosis, exposure will include the following benefits: medical expenses (including, but not limited to, doctor’s visits, any hospitalization, and any follow-up care), the employee’s time off of work, and permanency benefits. The permanency benefits could result in significant exposure as with some cases it unclear what the future holds for individuals diagnosed with this condition. PPD benefits in these types of cases could include awards for “loss of man as a whole” or even death benefits.
With this new rule, there is a lot for employers to consider. If you have any questions about the new COVID-19 IWCC Rule or any other workers’ compensation questions, please contact attorney Jennifer Barbieri. Ms. Barbieri focuses her practice on representing employers and insurance companies in claims including workers’ compensation and labor and employment litigation.