The Illinois Workers’ Compensation Commission announced an “emergency” amendment to its Rules of Evidence
The amendment creates a rebuttable presumption in favor of employees in COVID-19 claims
We do not recommend a blanket acceptance of COVID-19 claims
On April 13, 2020, the Illinois Workers’ Compensation Commission announced an “emergency” amendment to its Rules of Evidence under Section 9030.70(a). This amendment creates the rebuttable presumption that (1) any first responder or front-line worker diagnosed with COVID-19 during a COVID-19-related state of emergency contracted the virus in the course and scope of their employment and (2) the virus is causally connected to the hazards or exposures of the claimant’s employment.
Implications for Employers Defending COVID-19 Claims
Effectively, this rule automatically shifts the burden of proof to the employer, who must demonstrate that the claimant contracted the virus outside of the workplace. Generally, it is the claimant’s burden to prove every element of their claim by a preponderance of the evidence. Although the rebuttable presumption does exist in some very limited contexts under the Workers’ Compensation Act, the presumption generally favors the employer rather than the claimant. Thus, this new rule is a dramatic departure from the fundamental requirement that a claimant must prove their case. There is the underlying question of whether the rule itself was properly promulgated. Arguably, only the legislature can enact substantive changes to the rules of evidence governing Illinois workers’ compensation practice.
Defining “First Responder” and “Front-Line”
In addition to entirely upending the general evidentiary burden, the commission’s “emergency rule” is overly-broad as to which employees are considered “front-line.” First responders or front-line workers could include:
- Fire personnel
- Emergency medical technicians or paramedics
- All crucial personnel as set forth in Section 1, Part 12 of Executive Order 2020-10 (March 20, 2020)
The list of crucial front-line personnel includes over 30 designated occupations from grocery to gas station to cannabis industry employees, and is voluminous and broad. Therefore, a large number of potential Illinois employers would be impacted by this amendment. Whether a business or employee is considered first responder or front-line will certainly be an employer-specific, fact-based inquiry.
Understanding Causation and Exposure
The rule will create significant challenges for employers to establish a non-workplace causation in COVID-19 claims. New research constantly emerges about how the virus spreads, how long it can survive on various surfaces, and how long it incubates before symptoms manifest. Given the lack of widespread and available testing, establishing when and where a claimant actually contracted the virus will be difficult.
Lastly, there is a question as to what dates of exposure trigger the presumption. The rule states the presumption applies if the claimant’s injury or period of incapacity resulted from exposure to the virus during a COVID-19-related state of emergency. The federal government declared a public health emergency on January 31, 2020, whereas Illinois did not begin taking emergency action until March, thereby raising the issue of whether the “state of emergency” language expands the period of applicable exposures. Additionally, the rule itself is only effective for 150 days upon filing, which can impact the evidentiary issues in any cases filed thereafter.
Recommendations for Defending a COVID-19 Claim after the Emergency Order
We do not recommend blanket acceptance of COVID-19 claims in response to this emergency order. The rebuttable presumption does not equate to an automatic conclusion of law or fact. We acknowledge defending COVID-19 claims post-order will be more challenging. The order certainly forecasts the commission’s inclination to accept these exposure claims in cases of front-line employees. While we contest the legality of the vehicle for the change in burden of proof and should assert that position, we understand the issue of jurisdiction will undoubtedly be the subject of future litigation. We understand Illinois employers need a game plan now.
A claim of work-related COVID-19 exposure or symptoms should trigger immediate heightened priority by the employer. Aggressive initial investigation and competent expert involvement will be key to establishing a strong defense.
- Require that a claimant tender a positive COVID-19 test from a treating physician. Allegations of symptoms alone are not sufficient.
- Determine when a claimant began to show symptoms, whether any other co-workers are symptomatic or have tested positive, and whether any immediate family members have tested positive. Evaluate a claimant’s adherence to Illinois’ “stay at home” order and additional interactions prior to their diagnosis.
- Determine the prevalence of COVID-19 cases in the county of both the employer’s location and the employee’s residence can certainly be a factor.
- Utilize an infectious disease expert to establish the validity of the diagnosis and defend causation in cases.
As outright acceptance of a claim can result in waiver of certain defenses, we recommend employers consult defense counsel immediately on COVID-19 claim strategy. These claims must be evaluated on a case-by-case basis, now more than ever. We understand that employers want to support their employees during this difficult time, and that some cases may indeed warrant claim acceptance. Ultimately, this new rule, whether valid or not, requires we handle these claims with heightened attention, thorough investigation and an immediate strategic legal action plan.
We will continue to monitor the evolving administrative and legislative response to COVID-19 and will keep you apprised of changes in recommendations for your handling of COVID-19-related claims. For more information or immediate assistance with claims-handling, contact: