Potential Impact of COVID-19 on Illinois Workers’ Compensation

MARCH 2020

Given the current COVID-19 pandemic, we at ASA Law Group wanted to take this opportunity to briefly address the potential impact of the virus on compensability in Illinois workers compensation claims.

 

The Occupational Diseases Act (ODA) defines “occupational disease” as a disease arising out of and in the course of employment or which has become aggravated and rendered disabling as a result of the exposure of the employment.  A disease shall be deemed to arise out of the employment if it is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational diseases.  The disease need not be foreseeable or expected, but after contraction, it must appear to have had its origin or its aggravation in a risk connected with employment.

 

Under the ODA, an employee has to prove exposure, causation, a disabling condition and that the disease (here, coronavirus) has its origin in a risk connect with employment. Ultimately, whether coronavirus is compensable under workers’ compensation will be determined by a factual analysis and on a case by case basis.

 

The following two cases illustrate how fact-specific any future COVID-19 cases will be treated by the arbitrators and commissioners. Note, specifically that in Sperling the inability to put forth evidence of contact with a diagnosed person was detrimental to the claim. However, in Omron, it was not detrimental because of the nature of the disease (that most infections are caused by asymptomatic carriers) and because of the nature of the deceased’s contacts with the public (interviews, restaurants, hotel stays, office visits, airports, public transportation).  Comparatively, Sperling could not have contracted hepatitis from simple physical proximity or contact.

 

Omron Elecs v. IWCC, 2014 IL App (1st) 130766WC

For four years prior to his death, Mr. Bauer served as the President and Chief Operating Officer for Omron Elecs. From June 7 through June 22, 2006, he traveled extensively between Chicago, China, Japan, and Brazil. In Brazil, the deceased spent time interviewing candidates for a managerial vacancy in the Brazil office. Two days after his return, he died from Neisseria bacterial meningitis.

 

At trial, the arbitrator concluded that petitioner failed to prove the deceased’s infection occurred while the deceased was in Brazil. The Commission reversed on appeal, which was affirmed by both the Circuit Court and Appellate Court.

 

In response to the argument that petitioner failed to show sufficient proof of a direct contract with a known infected person while in Brazil, the Commission looked at the mode and method of transmission (droplets, typically shared by asymptomatic carriers) and the deceased’s significant contacts with the general public in finding that sufficient evidence was presented that the decedent was exposed while traveling in Brazil.

 

Sperling v. Indus. Comm’n., 129 Ill. 2d 416 (May 17, 1989)

Ms. Sperling was an operating room nurse who claimed she contracted Hepatitis B from accidentally pricking herself with a sharp operating room instrument that had been exposed to a patient’s blood. Ms. Sperling alleged that at some point in 1978 she began feeling fatigued, had headaches and feverish and thus sought medical treatment. Her physician noted her yellowish eyes and ordered a liver enzyme test that revealed evidence of hepatitis. Later, it was confirmed via liver biopsy that she had chronic persistent hepatitis B.

 

In this case, Ms. Sperling testified that she pricked herself at least once a week with sharp instruments that had been exposed to patients’ blood. However, she was unable to provide a description of even one incident where she had been pricked with an instrument containing a patient’s blood let alone that any of the patients were hepatitis positive. The medical testimony ranged from “nurses have greater exposure than the general public” to an inability to pinpoint infection without additional information on personal and sexual history.

 

The arbitrator found that no causal connection between employment and her hepatitis. This was confirmed by the Commission and reversed by the Appellate Court. Ultimately, the Illinois Supreme Court affirmed the Commission’s finding.  Additionally, the Illinois Supreme Court reiterated that while a petitioner need not prove “direct causal connection,” the Commission’s decision in giving more weight to one medical expert over the other was to be given deference unless it was against the manifest weight of the evidence.

 

For most employees, proving that the coronavirus is compensable will likely be challenging because the employee has to show exposure, causation, a disabling condition and that the disease has its origin in a risk connected with employment.

 

We must also consider that if the coronavirus become as widespread as anticipated, it should generally be more difficult for most employees to prove their exposure to the coronavirus was work related because of “no greater exposure than the general public.”  At the moment, there really is not any testing or objective way to prove the origin of the contraction. As such, any claimant will then be forced to rely on circumstantial evidence, such as working in a high exposure area in carrying out their work duties, etc.

 

As we all know, COVID-19 continues to be a fluid and challenging situation, therefore, as new information emerges, we will continue to update you regarding the effect of those changes on workers’ compensation claims. However, at this time, there are several steps that you should be taking in order to protect your business and employees:

1. We strongly recommend that, if you have workers physically at your locations, that you have them follow directives of the CDC and federal government, which include, but are not limited to, social distancing and regular handwashing;

2. If employees show up to work exhibiting common symptoms associated with COVID-19 per the information from the federal government and CDC, it is in the best interest of that employee and other employees to send him or her home;

3. Continue to report and investigate any and all COVID-19 claims just like any other type of workers’ compensation claims;

4. If an employee claims that their COVID-19 infection is work-related, as part of your investigation into the claim, you will want to obtain specific information including, but not limited to, the following:

a. When and where the alleged exposure occurred on the job;

b. If they have actually tested positive for the virus and if a medical record proving such test exists;

c. Any other supporting medical documentation; and

d. You may also want to inquire about whether any close family members are COVID-19 positive as those types of extenuating circumstances may be the actual cause of the infection rather than their job duties.

 

While this is a very brief summary of the issue, we will dive into more specifics during our upcoming free webinar on March 26, 2020. Please click the link below to register: https://event.webinarjam.com/register/1/yylv4cq. We would love for you to join us as we address this emerging issue in greater detail. If you are unable to join, please reach out to us with any questions or concerns.

 

*Any information in this article is meant to serve as counsel for workers’ compensation issues only. Any issues directly relating to employment should be addressed with employment counsel or human resources.

 

 

 

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