On April 16, 2020, the Illinois Workers’ Compensation Commission’s (IWCC) emergency evidentiary rule creating a rebuttable presumption in COVID-19-related workers’ compensation cases took effect. Employers will notice the language of the rule has been amended. The final published rule states:
In any proceeding before the Commission in which the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus during the Gubernatorial Disaster Proclamation 2020-38 and any subsequent COVID-19 disaster proclamations, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment. 50 Ill. Adm. Code 9030.70(a)(1).
Prior to promulgating the final version of the rule, the IWCC held a call with employee, employer, and public interest representatives, as well as arbitrators and commissioners. Objections were raised as to whether rulemaking was the proper vehicle for changes which create new substantive rights, the apparent lack of prior consultation with employer representatives, and unnecessary cost-shifting to employers, among other things. Certain commissioners also expressed their concerns with the rule. Nevertheless, the final rule was passed and has gone into effect.
With the final rule in effect, we can now provide employers with a more detailed overview of expectations moving forward in COVID-19 cases.
The published rule provides some clarification to the period of applicability. The proposed emergency rule provided the presumption applied to exposures during a COVID-19-related state of emergency. The final rule applies the presumption to those COVID-19 exposures occurring during the Gubernatorial Disaster Proclamation 2020-38, which declares a state of emergency in Illinois beginning March 9, 2020.
In spite of this clarification, the rule is still vague as to whether the presumption applies to claims pre-dating the effective date of the rule. This a two-pronged issue. The first inquiry is whether the rule was properly promulgated. Substantive changes to the rules of evidence and presumptions generally rest with the legislature and it is unclear whether the commission’s rulemaking authority extends to an evidentiary rule change that significantly impacts the due process rights of a party.
Even if the commission’s rulemaking authority does allow it to create and implement such a presumption, the second inquiry is whether the new rule can be applied retroactively. Rulemaking is generally considered prospective. Administrative agencies are permitted to promulgate rules and regulations that apply retrospectively, but only under certain circumstances. If a rule change is simply procedural, then it can likely be applied retrospectively. However, if a rule change impacts substantive rights it may only apply prospectively. Given this rule creates an evidentiary presumption that fundamentally alters the burden of proof, and thus the respondent’s due process rights, we would argue it can only be applied to those exposures which occurred on or after April 16, 2020.
This then leads us to the issue of how to determine whether the exposure occurred before or after the effective date for purposes of applying the presumption. The rule states there is a rebuttable presumption of causation if the injury resulted from “exposure” to the COVID-19 virus during a gubernatorial-declared state of emergency. However, there is no indication as to whether this refers to only diagnosed cases of COVID-19 or any condition somehow related to mere exposure to the virus. The broad language of the rule, absent definition of these specific elements, may lead to claims for self-isolation without a diagnosis or symptoms.
Moreover, the final rule does not provide any specificity as to what type of showing is required to establish exposure to the virus. We would argue there must be a confirmed, positive COVID-19 diagnosis from a qualified medical professional, at a minimum.
Though it may not have been the commission’s intent to cast such a wide net, the language of the final rule invites broad interpretation and illustrates why such hurried rulemaking is generally disfavored.
There is no doubt these essential, front-line employees are performing vital work and we certainly understand employers are concerned with supporting their employees and ensuring their safety and security during this unprecedented time. However, we strongly caution employers and insurance carriers from issuing blanket acceptances in response to this new rule, as they may waive certain defenses down the line. We also strongly caution against issuing blanket denials, as we recognize some cases will warrant acceptance.
COVID-19 claims by their very nature, and particularly in light of this new rule, require heightened attention, as well as expeditious and aggressive investigation prior to making a compensability determination. This investigation should include a thorough inquiry into:
Further, we caution that employers should be prepared for COVID-19 emergency hearings under Sections 19(b) or 8(a) to move forward on their assigned hearing dates, as the new rule and the nature of the disease may narrow the opportunity for a continuance to further investigate the claim. Employers, brokers, and carriers are strongly encouraged to consult with defense counsel immediately, even if no claim has been filed, to ensure the necessary information is timely gathered in the event a claim and subsequent commission filing does arise.
We anticipate a temporary restraining order will be filed in the coming days to prevent the commission from applying the rule. However, unless and until a court grants such an order, employers should operate as though the rule will remain in effect.
Our Workers’ Compensation team continues to monitor the constantly evolving response to the COVID-19 pandemic and is available to answer any questions employers, brokers, or carriers may have. For more information or immediate guidance, contact: