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* UPDATED x1 * Business groups file lawsuit over new workers’ comp rule

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* Press release…

– A coalition of business groups today filed a lawsuit challenging changes recently adopted by the Illinois Workers’ Compensation Commission that will require employers to pay workers’ compensation benefits if an employee is diagnosed with COVID-19 without proof the illness was contracted at the workplace.

The plaintiffs in the case are the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association, which filed the suit on behalf of the state’s diverse employer community. Together, IMA and IRMA’s membership employ the largest number of workers in Illinois and contribute the highest share of the state’s Gross Domestic Product. The legal challenge was filed in Sangamon County Circuit Court by attorneys Scott Cruz, Thad Felton and Kevin Hormuth with the law firm Greensfelder, Hemker & Gale, P.C.

“To be clear, this case is not about the wisdom of the substantive new law expressed by the Commission. This case is about the Commission far exceeding its rulemaking authority. The substantive law of Illinois, and the wisdom of implementing it, is for the legislature, after proper discourse, and not the whim of the Commission,” said attorney Scott Cruz. “Essential businesses across Illinois are doing all they can to protect workers while also meeting unprecedented demand for food, medical supplies, protective equipment and other important services needed during this pandemic. At a time when many are waiting for relief from the federal and state government in an effort to make payroll and retain workers, they will now be forced to pay for additional medical and salary costs regardless of whether an employees’ illness was contracted outside of the workplace.”

For clarity’s sake, the new rules shift the onus of proof onto businesses. They can still rebut the claims.

Working on getting a copy of the lawsuit, but the biz groups say they believe they’ll get a hearing this week.

…Adding… The complaint is here.

*** UPDATE *** Illinois AFL-CIO…

It shouldn’t shock anyone that the corporate community opposes a policy decision that helps workers. It’s what happens in Springfield and Washington D.C.

Only thing is, for the last several weeks, we as a community, state, nation and world have been fighting a scourge that has ground the economy nearly to a halt and likely forever changed our society and its people.

From the beginnings of the pandemic, our institutions have had one common thread holding communities together – our front line workers. Whether it is the health care workers and first responders trying to stay even or one step ahead of a lightning-fast disease, or the grocery store clerks, public employees and other essential support people, they have not blinked in trying to keep us safe and ready to begin a recovery.

We commend Gov. JB Pritzker and the Illinois Workers’ Compensation Commission for their foresight, compassion and good judgement in making sure those essential workers who contract COVID-19 are covered under Workers’ Compensation protections.

This is why we have Workers’ Compensation. Let’s defend the workers standing between us and chaos. We hope the business community interests that filed a lawsuit challenging the ability of sick workers to have speedy access to Workers’ Compensation rethink their position.

posted by Rich Miller
Wednesday, Apr 22, 20 @ 10:16 am

Comments

This is a real concern for us. People are going for groceries, but as we have been open, and vigilant with masks, distancing, and cleaning. We are “on the hook”. Also, the amount of lawsuits for folks survive, how will business survive the lawsuits associated to this? I assure you, without some level of protection, attorneys will be ready to roll.

Comment by CCM Wednesday, Apr 22, 20 @ 10:22 am
I can’t disagree with the plaintiffs here. Seems wrong to automatically make them pay if it isn’t work related.

Comment by JS Mill Wednesday, Apr 22, 20 @ 10:32 am
If you don’t want to help your employees, the government shouldn’t help you

Comment by Rabid Wednesday, Apr 22, 20 @ 11:13 am
If IMA and IRMA would use their collective powers to get Medicare for all or other single payer insurance, this problem could disappear. People who need medical care would go to their providers and the decision about where/how they got it could be decided later. Expecting employees who are desperately sick and at risk of dying to navigate the existing process is grotesque.

Comment by Froganon Wednesday, Apr 22, 20 @ 11:15 am
“They can still rebut the claims.”
I suppose in theory, but how could a business prove where the person contracted the virus?

Also, serious question: if they are working from home, and get infected there, is that compensable?

Comment by Ebenezer Wednesday, Apr 22, 20 @ 11:18 am
So all an employer would need to do is demonstrate that they provided a work environment with adequate safety, social distancing, PPE, plenty of hand washing stations, opportunities to wash their hands, and things that would demonstrate that the infection most likely didn’t occur at work?

No wonder they filed.

Lets make this clear, the change made by the commission protects the people we are lauding as heroes from the employers attempting to make them into unwilling martyrs.

Comment by Candy Dogood Wednesday, Apr 22, 20 @ 11:25 am
The emergency rule adopted in strict compliance with the IL Administrative Procedure Act does not “automatically make them pay.” It makes “them” rebut a presumption that first responders, health care workers and essential employees who are required to be at their posts during the pandemic, some of whom have already died, are covered by workers’ compensation. “Them” are giant insurance insurance companies and workers comp administrators with hundreds of attorneys who are pretty good at rebutting similar presumptions that exist in the law already. “They” can still dispute any and all cases even with this emergency rule, as “they” always could and often did without the rule. The emergency rule itself as adopted says it does “not guarantee or assure” payment at all.

Comment by just me again Wednesday, Apr 22, 20 @ 11:31 am
Wrong, Candy Dogwood. That is not what the shift in the burden of proof means at all. An employer can do all of those things and it would still be presumed that the employee contracted COVID at work. And it would be up to the employer to prove that they got it somewhere else. Now, how can an employer prove that?

Comment by Bored Chairman Wednesday, Apr 22, 20 @ 11:41 am
This is a tough one. Setting aside whether the commission has the authority to implement such a rule without legislative purview it makes sense in the context of true first responders but may be a stretch in other environments.

For example, a nurse whose is treating and coming into repeated contact with COVID-19 positive patients is working in an environment where it is more likely than not the nurse will contract COVID-19 at the workplace. The same cannot be said for the other listed workers in the order.

Additionally, in normal circumstances overcoming a rebuttable presumption is difficult. But when an invisible and odorless element is at play, it makes it impossible to determine the origin of contact. This is not a slip-and-fall argument.

Comment by Allin Wednesday, Apr 22, 20 @ 11:44 am
=Also, serious question: if they are working from home, and get infected there, is that compensable?=

Not under this rule change as they wouldn’t meet the definition of first responder or front line worker.

The issue here is that you have people that absent being employed in an essential position would be governed by the stay at home order. The IWCC is saying that if you are required to work at this point and have COVID-19 that we’ll presume it was contracted at work and that would be bolstered by positive tests in the workplace. The employer does have the right to rebut that.

Comment by Pundent Wednesday, Apr 22, 20 @ 11:53 am
As to how an employer can “prove that” and rebut similar workers comp presumptions successfully and maybe even easily, see the Johnston & Simpson 2017 Appellate Court cases. When and as soon as the insurance company or administrator says “we dispute,” they do not pay and the first responder, health care worker or essential worker has to move forward with a case.

Comment by just me again Wednesday, Apr 22, 20 @ 11:55 am
=Now, how can an employer prove that?=

No other positive employee tests and an immediate family member testing positive could do the trick.

Comment by Pundent Wednesday, Apr 22, 20 @ 11:58 am
Bored Chairman, are you saying that a rebuttable presumption means the burden of proof/persuasion shifts to the defendant? Because that’s not how the Illinois Rules of Evidence work, not at all.

A rebuttable presumption only shifts the burden of production, which is entirely different than shifting the burden of persuasion/proof. That’s literally day 1 of Evidence class.

Do the Illinois rules of evidence not apply in workman’s compensation cases? What rules do apply (genuinely asking)?

Comment by Bored Layman Wednesday, Apr 22, 20 @ 12:01 pm
There are other similar presumptions in the work comp and occupational disease acts. Since IDPH is trying to determine where anyone who has it was exposed it will sort itself out.

This suit is about the making of an emergency rule in the dark of night and can the government justify that.

No, the work comp commission is shut down because JB can’t find the $15000 to get the Arbitrators computers so they can use zoom.

Not to mention, no one with this disease is appearing for a trial while you have it. What was the emergency when it will be months before you get to a judicial process?

IMA should make the case if there is a need to expedite the process procedural changes should be made to get these cases to hearing ASAP. Much lower scrutiny to change a procedural rule and practically more productive in this case.

Comment by the Patriot Wednesday, Apr 22, 20 @ 12:16 pm
==Do the Illinois rules of evidence not apply in workman’s compensation cases?==

No.

Comment by the Patriot Wednesday, Apr 22, 20 @ 12:17 pm
Yes, Board Layman. Take a look at the rule(s). Maybe take an employment law class while you’re at it.

Comment by Bored Chairman Wednesday, Apr 22, 20 @ 12:19 pm
===Now, how can an employer prove that?===

By proving all their employees have been vaccinated and are not carriers of the disease.

See how hard this is when you try to go back to normal, just for the sake of going back to normal, before addressing the reality of the current situation?

The US is a in the middle of a slow-motion catastrophic failure. And nobody seems to notice yet.

The song - “Nothing But Flowers” by Talking Heads keeps going through my mind lately.

Comment by TheInvisibleMan Wednesday, Apr 22, 20 @ 1:27 pm
==Do the Illinois rules of evidence not apply in workman’s compensation cases?==

Yes, except for medical treatment records certified by the provider and/or returned by subpoena, which are admissible w/o witness testimony.

“The rules of evidence apply to all proceedings before the Commission or an arbitrator, except to the extent they conflict with the Act.” Greaney v. Industrial Comm’n, 358 Ill. App. 3d 1002, 1010 (2005).

Charming how corporate America lionizes our front line essential workers and first responders until the medical bills arrive, and then they want taxpayers to pick up the tab…

Comment by Alternative Logic Wednesday, Apr 22, 20 @ 2:17 pm
Bored Chairman, I took a look at the workmans’ comp rule(s) per your request, and found this (in the same section as the rule they just passed):
“The Illinois Rules of Evidence shall apply in all proceedings before the Commission . . .” 50 IL ADMIN CODE 9030.70.

Wouldn’t, then, that include Illinois Rule 301?
“In all civil actions and proceedings not otherwise provided for by rule, statute or court decision, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, **but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast**.”

It seems at least one of us needs to brush up on our knowledge of the IL rules of evidence. Also, funny you would suggest I *take* an employment law class. I happen to *teach* employment law.

Comment by Bored Layman Wednesday, Apr 22, 20 @ 5:05 pm
===I happen to *teach* employment law===

lol

I love my commenters.

Comment by Rich Miller Wednesday, Apr 22, 20 @ 5:11 pm
A work comp defense attorney I spoke with who is pretty connected said I shouldn’t hold my breathe hoping this gets overturned. This will be painful for a lot of businesses.

Comment by Chicagonk Wednesday, Apr 22, 20 @ 6:19 pm
=I happen to *teach* employment law.=.

If I took a class from someone who continually referred to “workers’ compensation” as “workmans’ compensation” I’d question how current they were on the law.

Comment by Anonymous Wednesday, Apr 22, 20 @ 8:30 pm
=I happen to *teach* employment law.=.

If I took a class from someone who continually referred to “workers’ compensation” as “workmans’ compensation” I’d question how current they were on the law.

Comment by Pundent Wednesday, Apr 22, 20 @ 8:31 pm
There is a simple and inexpensive solution to this and all other medical issues and shortcomings this pandemic has exposed.

Single payer system.

Comment by Chicago 20 Wednesday, Apr 22, 20 @ 9:11 pm
Double edged sword. As previous commenters have pointed out, this interpretation may benefit some businesses because, as the exclusive remedy, it will preclude lawsuits for negligence.

Comment by Put the fun in unfunded Wednesday, Apr 22, 20 @ 9:32 pm