* I asked a spokesperson for the Illinois Retail Merchants Association why they believe the Illinois Workers’ Compensation Commission’s emergency rules this week violate state law. The new rules, you will recall, decree that it will be presumed that certain workers contracted COVID-19 on the job, allowing them to start receiving workers’ comp payments. That presumption can be challenged by employers, but it puts the onus on business. Employer groups were furious this week after the IWCC issued its rules. Here’s the response…
The business community believes the IWCC’s “emergency rule” violates state statute since an agency cannot make substantive policy changes in the rulemaking process. Rules are adopted to help implement laws passed by the General Assembly and signed by the Governor. While we are in an emergency situation, the scope of the ruling is outside what the statute allows them to do. That can only be done by the legislature.
Two points to consider here:
The firefighters have been pushing HB 2480 (or similar legislation) for years, which would add MRSA (Methicillin-resistant Staphylococcus aureus) to the list of ailments giving rise to a rebuttable presumption rule (i.e. employers must prove employees didn’t get it on the job.) Why are they pushing this legislatively; because under law they cannot simply have the IWCC change the law through rulemaking. This is exactly what happened yesterday though – ironically with the firefighters in attendance.
It’s important to note that courts have ruled on this issue repeatedly. In 2009, Governor Rod Blagojevich was sued by Ron Gidwitz and Greg Baise over the expansion of Kid Care. Blagojevich lost at every level and the case was finally settled in 2009 when Pat Quinn became Governor. That case cost Illinois nearly $2 million in legal fees. Keep in mind that Illinois statute (5 ILCS 100/10-55) provides that Illinois must pay the legal fees and reasonable expenses when an administrative rule is invalidated by a court for any reason, but not limited to the agency’s exceeding its statutory authority or the agency’s failure to follow statutory procedures in the adoption of the rule.
I reached out to the governor’s office late yesterday and haven’t yet heard back. I’ll let you know.
* Meanwhile, here’s Hannah Meisel’s story today on another topic…
New summons for wage garnishment and deductions, as well as citations to discover assets for debt collection, will be temporarily suspended for the duration of Illinois’ disaster proclamation prompted by the coronavirus just as Americans are set to begin receiving federal stimulus checks, per a new executive order signed by Gov. JB Pritzker Tuesday.
In the order, which was not publicized by Pritzker’s office, the governor described the measure as having been drafted “to ensure that residents have funds for essential items such as food, medicine, housing, and transportation.”
“Involuntary debt collection causes debtors to travel, including to courthouses and financial institutions, to seek relief from debt collection activity and, as a result, undermines critical efforts to maximize social distancing and prevent the spread of COVID-19,” the order said.
The Illinois Department of Financial and Professional Regulation announced the “protections” for stimulus money on Tuesday afternoon, though the agency did not mention the underlying executive order issued the same day.
The EO is here.
- West Sider - Wednesday, Apr 15, 20 @ 10:17 am:
Hopefully this prevents seizing stimulus funds for bank overdraft fees as well.
- Boomerang - Wednesday, Apr 15, 20 @ 10:32 am:
Does this suspension of garnishment extend to child support? Garnishment is one avenue for getting deadbeat parents to pay their fair share. Could disproportionately impact single
mothers.
- dirksen - Wednesday, Apr 15, 20 @ 10:34 am:
There are so many workers now teleworking–how does the rule imapct them? is the home now considered a workplace?
- Rich Miller - Wednesday, Apr 15, 20 @ 10:37 am:
===Does this suspension of garnishment extend to child support?===
Read the EO.
The answer is no. But c’mon. If you have a question, first click the provided link.
- RobertTraver - Wednesday, Apr 15, 20 @ 10:40 am:
It exempts child support orders.
- NothingBurger - Wednesday, Apr 15, 20 @ 10:56 am:
* is the home now considered a workplace? *
Good point, if I slip on cat barf do I get workers comp?
- Boomerang - Wednesday, Apr 15, 20 @ 11:04 am:
Sorry Rich. Of course you’re right. My bad.
- Telly - Wednesday, Apr 15, 20 @ 11:22 am:
== is the home now considered a workplace? ==
Maybe I’m reading it wrong, but it looks like the exec order applies to workers from businesses deemed “essential” in the guv’s stay at home order — meaning those businesses (like grocery stores and supply chain warehouses) that are still open and have employees in the workplace. And it only applies to injury from COVID, not an injury from slipping “on cat barf” while working at home.
Having said that, I get why some businesses see this order as an overreach. Seems reasonable to presume a critical care nurse who has COVID acquired it on the job. Not so sure the same presumption should apply to a warehouse worker who tests positive — that’s probably something that should be determined through the regular workers comp hearing process.
- Former Candidate on the Ballot - Wednesday, Apr 15, 20 @ 11:52 am:
Telly - That is where the problem is. Illinois has a 1% threshold for causation - Meaning that all the employee has to prove is that there was a 1% chance or greater that the work place could have caused the injury. That is what is not reasonable
- Blue Dog Dem - Wednesday, Apr 15, 20 @ 11:57 am:
I have been griping about our causation clause for years.
- Alternative Logic - Wednesday, Apr 15, 20 @ 12:06 pm:
== That is where the problem is. Illinois has a 1% threshold for causation ==
Maybe my wires are crossed but if what you’re saying was actually true, why would the new rule be controversial?
And after you explain that, please be so kind as to explain why there are so many commission decisions (and Appellate Court opinions) denying benefits to the families of injured workers?
- Pundent - Wednesday, Apr 15, 20 @ 12:07 pm:
=Illinois has a 1% threshold for causation=
Please cite the specific rule Illinois Industrial Commission rule that contains the 1% threshold. I’ve been dealing with workers’ compensation across the country for 30 years and have never seen the cited threshold in any state including Illinois.
If your going to argue about “causation” at least know what it means.
- the Patriot - Wednesday, Apr 15, 20 @ 12:16 pm:
Take a breath
The work comp rule is meaningless as the Commission is closed. All the employer has to do is deny the case. Other than death cases it is almost nothing. The death cases are going to be litigated.
It is clearly illegal…except in times of crises the courts defer to the executive especially where the legislature elected to sit the crises out.
Hearing this at both the state and Federal level. If the legislative branch thinks the executive is usurping power, get out of your bunker and get to work. Otherwise the Executive and Judicial branches will sort it out.
Maybe some of us should take some time to read the constitution and a history book. Not a new history books, one of those pre-1990 one’s with actual facts on how this stuff works. And the framers got it right, it works.
- Lefty Righty Middle - Wednesday, Apr 15, 20 @ 12:21 pm:
Ok JB, so now who’s acting like a “king”?
- Louis G Atsaves - Wednesday, Apr 15, 20 @ 12:30 pm:
The 1% rule on causation remains a myth. Every time I prove 1% causation in prosecuting a Workers’ Comp case at the Commission, I lose. And I’m not the only one. Can the Commission add COVID-19 cases to the statutory list of rebuttable presumptions for causation according to Section 11 of both Acts (WC Act and Occupational Diseases Act) without the Act(s) being formally amended? I think not. With or without the emergency rule, COVID-19 exposures and injuries can still be filed at the IWCC.
- Captain Obvious - Wednesday, Apr 15, 20 @ 12:33 pm:
Jay Bob be liking this power thing. It’s not just for presidents anymore. Hope he can find the restraint though, to avoid going full Whitmer…
- Busy Not 1 - Wednesday, Apr 15, 20 @ 12:40 pm:
So, if the home is the workplace, if they get hurt a home, does workman comp cover? Whats the thoughts, they are after all on the clock
- Mr. K. - Wednesday, Apr 15, 20 @ 12:47 pm:
* Good point, if I slip on cat barf do I get workers comp?*
If the cat barf is in a business - sure.
And then you can tell everyone you slipped on cat barf.
That’s why you’re sitting in a ratty recliner in a dark room in the middle of a sunny afternoon watching reruns of Jeopardy from 1992, drinking Tab, sucking cheez-whiz straight from the can, and smoking your tenth Swisher Sweet.
Ain’t that America.
- Rich Miller - Wednesday, Apr 15, 20 @ 12:49 pm:
Mr. K. wins the Internet.
- Lynn S. - Wednesday, Apr 15, 20 @ 12:51 pm:
@Telly:
So you have questions about warehouse workers.
Consider this scenario:
I work in a warehouse, but my employer doesn’t provide masks or hand sanitizer, despite the WHO declaring a pandemic.
3 of my coworkers are diagnosed with the pandemic disease, and in the hospital.
My employer says that any employee who chooses self-quarantine will not incur attendance points, but will not be paid for the quarantine time.
4 days after my last co-worker is hospitalized, I start showing symptoms of the pandemic disease. (Keep in mind it’s currently unknown how long the disease incubates before a person shows symptoms.)
Do I qualify for work comp, or must I hire a lawyer and an epidemiologist to pursue my claim?
Does your answer change if I told you that after I got sick, everyone in my household is tested, and the 3 year old and the 9 year old test positive, but don’t seem to be showing any symptoms at all?
- the Patriot - Wednesday, Apr 15, 20 @ 1:53 pm:
As part of the customary process with this disease you IDPH attempts to identify where you were exposed so it is not as complex as it may seem.
We have never let the law or fact get in the way of how the IWCC operates. Remember the time Mike Madigan pushed reform because of rampant fraud in state facilities. Yea, his daughter never pursued a single charge despite hundreds of cases and millions of dollars. It was a fabrication.
Part of that “Reform” was now the Arbitrators that judge cases serve on 3 year terms appointed by the Governor. So unless a Republican beats him, every Arbitrator has to be reappointed by the Governor who says its work comp. When the guy appointing the judges says its work comp, its work comp.
Welcome to Illinois.
- Telly - Wednesday, Apr 15, 20 @ 2:05 pm:
@Lynn S.
All good points. Sounds horrific. I’d say you have a rock solid case that any workers comp atty would love to take to a hearing. However, the fact pattern might be less clear for an employee in a warehouse that does have PPE and hand sanitizer and has practice some sort of social distancing strategy. Not sure there should be an automatic presumption that an employee in that scenario was infected with COVID at work, but that’s what the emergency rule does.
- Lynn S. - Wednesday, Apr 15, 20 @ 2:19 pm:
@Telly,
My scenario is basically plagiarized from the stories about Amazon warehouse workers.
This EO was put in place to protect first responders and healthcare workers who were/are coming down with Covid-19, but the institution they work for is fighting them over where infection was acquired.
- Pundent - Wednesday, Apr 15, 20 @ 2:26 pm:
=I’d say you have a rock solid case that any workers comp atty would love to take to a hearing. =
That’s great. But the Industrial Commission is closed and even when they reopen hearings don’t happen quickly. And there will be a mile long backlog of cases in front of you. So maybe you get your case heard a year from now. Maybe.
Now consider that same worker who spends the vast majority of their time in two places these days, home and at work. Because keep in mind that other than going to the grocery store and other essential places we are basically “closed.” Are you going to be able to convincingly argue that the contracted the disease anywhere other than work? Because I’m sure they will argue (credibly) that they were either at home or at work.
- Former Candidate on the Ballot - Wednesday, Apr 15, 20 @ 3:35 pm:
Ok - I modify my statement - Illinois currently has an “any cause” standard - which can be liberally interpreted by any hearing officer. Maybe we should tighten up what is reasonable with the hearing officers, or initiate a “pre-dominate” or “50% responsible” clause - still able to be liberally interpreted, but a start
- Louis G Atsaves - Wednesday, Apr 15, 20 @ 4:23 pm:
You are referring to “a causative factor” which is often easily rebutted during a hearing by a Respondent who brings in their own medical causation opinion to the contrary. Thus, the difficulty in proving “a causative factor” by itself, absent other factors or facts. I frequently point out that our causation standard is identical to that of Indiana, which pays out far lower benefits. in Illinois, the benefits are far better. In terms of hearing officers, the 3 year terms implemented under Governor Quinn with changes in legislation has resulted in a higher turn over of hearing officers, with fewer of them having substantial experience in the field. Just saying.
- Thomas Paine - Wednesday, Apr 15, 20 @ 4:55 pm:
Are police practicing social distancing at the station?
1 in 6 NYC officers has been infected. The risk of coworkers infecting each other is extremely high, as we saw at Smithfield.
The governor’s rule is gonna get tossed. As he pointed out with the election, he cannot rewrite statutes.
- Pundent - Wednesday, Apr 15, 20 @ 7:27 pm:
=Illinois currently has an “any cause” standard - which can be liberally interpreted by any hearing officer.=
You’re guessing because you have no idea what the actual standard is. Maybe you heard something and that’s what’s driving your belief in how this works. But it’s all available for your purview on the IWCC website.
BTW It’s “arbitrator or “commissioner” not hearing officer.
- Anonymous - Wednesday, Apr 15, 20 @ 8:47 pm:
Certainly a lot of non work comp experts opining today.
It was Sisbro Inc. v. The Industrial Commission that created the issue when the court ruled the workplace had to be “a” cause of the injury or aggravation (emphasis on the word “a”).
The best interpretation of existing law therefore remains that in order to recover in Illinois an employee needs only show that the accident might or could have been “a” cause of his injury. The employee does not need to prove that the injury was “the” cause or even the “primary” cause.