More Evidence Coronavirus Victims and Their Families Face Difficult Legal Fights against the Powerful Insurance Industry
Last month, the State of Illinois tried to help workers and employees in jobs within its jurisdiction by issuing a legal directive that anyone ill with COVID-19 could feel safe in seeking worker’s compensation to cover their injuries, because it would be presumed (as a general rule) that they were exposed during their employment.
The rule was enacted with limits: it does not apply to all workers, but only to those within its definitions of either (1) COVID-19 First Responders or (2) Front-Line Workers.
Emergency Amendments to the Illinois Law to Protect COVID-19 Victims
Specifically, on April 15, 2020, the Illinois Workers’ Compensation Commission (IWCC) published its Emergency Amendments to the Illinois Rules of Evidence, adding the following language:
1) 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.
2) The term “COVID-19 First Responder or Front-Line Worker” means any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the crucial personnel identified under Section 1 Parts 7, 8, 9, 10, 11, and 12 of Executive Order 2020-10 dated March 20, 2020.
Read the complete IWCC Notice online here. The Amendment is a modification of Section 9030.70 of the Illinois Administrative Code, which requires IWCC proceedings to follow the Illinois Rules of Evidence in proceedings unless the evidentiary rules conflict with certain legislation, e.g., the Illinois Workers’ Compensation Act, etc.
Business Response to Illinois Amendment to Help Provide COVID-19 Workers’ Compensation
Illinois business concerns were not pleased with this attempt to help Coronavirus victims. A joint press release denouncing this state action was made by the following commercial representatives:
· Associated Beer Distributors of Illinois
· Chemical Industry Council of Illinois
· Chicagoland Chamber of Commerce
· Illinois Hotel & Lodging Association
· Illinois Manufacturers’ Association
· Illinois Petroleum Marketers Association/Illinois Association of Convenience Stores
· Illinois Retail Merchants Association
· National Federation of Independent Business
· Valley Industrial Association.
Their arguments? It happened too fast (e.g., Open Meetings Act). It will cost too much. It will be too hard for a business to refute the presumption that the worker was exposed on the work site.
Lawsuit Filed to Stop Insurance Coverage for Coronavirus Victims
On April 22, 2020, the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association filed a lawsuit against the IWCC, alleging the Commission did not have the legal authority to rule that exposure to the Coronavirus is within the definition of “occupational disease” covered by Illinois’ worker compensation laws.
· Review their petition online as provided by Courthouse News.
The next day (April 23rd), the judge granted the two industry associations their request for a Temporary Restraining Order. The court order prevents the IWCC’s Emergency Rule regarding COVID-19 exposure from being recognized in the short term, while legal arguments are being considered from both sides. See, “Judge Blocks New Illinois Workers’ Compensation Rule That Granted Benefits to Employees Who Contract COVID-19,” written by the Associated Press and published in the Chicago Tribune on April 24, 2020.
Illinois Commission Withdraws Its Emergency Amendment
On April 27, 2020, the IWCC withdrew its emergency rule regarding workers’ compensation coverage for Illinois workers suffering from the Coronavirus. See, “Illinois Repeals Controversial Workers’ Compensation Rule That Presumed Front-Line Workers with COVID-19 Got It On The Job,” written by Jamie Munks and published by the Chicago Tribune on April 27, 2020.
Insurance Industry and Defense Bar Reaction
Insurance companies were overjoyed, with the National Association of Mutual Insurance Companies issuing a press statement criticizing the efforts by the IWCC as “an overreach, both procedurally and legally, and the revocation of the rule was in the best interest to ensure a fair process and help employers around the state.”
Behind this criticism, the clear position of these industry associations, the insurance industry, and the defense bar is made clear in the concluding paragraph of the amicus brief filed in the above-referenced lawsuit.
The brief was filed jointly by the American Property Casualty Insurance Association, the National Association of Mutual Insurance Companies, the Illinois Chambers of Commerce, the Independent Insurance Agents of Illinois, and the DRI (self-described as “the leading organization of defense attorneys and in-house counsel”):
In their brief to the court, they summarize their concerns as follows:
“Simply put, the costs of creating a broad presumption of compensability for exposure to COVID-19 are unexpected and potentially disastrous to employers and insurers that fund a system that must remain viable beyond the current pandemic for the benefit of future injured workers.”
COVID-19 Victims Must Fight for Justice in Illinois and Indiana
It is likely that the IWCC will return with another version of its amendment to the current procedural rules for Illinois’ Workers’ Compensation as it applies to those working in the front lines of the Coronavirus Pandemic. Illinois Governor J.B. Pritzker has suggested as much during one of his daily news conferences.
Nevertheless, the actions undertaken by the two associations in filing this lawsuit, and in the “friend of the court” filing by business groups as well as the insurance industry and insurance defense attorneys are another clear message to those who represent injured victims and their families.
There will be many hard-fought legal battles to keep profits in the pockets of industry and insurance – instead of helping Coronavirus victims and their families with their lost wages, medical expenses, pain and suffering, and more.
In our previous post, we discussed how there is a movement in the Senate to protect businesses from being held financially accountable for their failures in keeping people safe from harm (duties of care and safety) using the fallacious argument that the country must be protected against greedy plaintiff’s lawyers.
Here, the same motivation – to protect businesses from being held financially accountable for COVID-19 exposure – is being argued as an agency overstepping its bounds.
The reality is that those who state and federal law hold legally responsible for keeping workers, employees, and others safe from harm do not want to pay the health care costs, lost income, etc. suffered by the Coronavirus victims and their families.
They are desperate to find loopholes and excuses so they can skirt around being held liable to those who are suffering – and those who have died – as a result of COVID-19.
This leaves COVID-19 Victims no other choice but to file lawsuits to force companies (and their insurers) to do the right thing – as clearly defined by law.
If you or a loved one has suffered injury from COVID-19 exposure at work or elsewhere, then you may have a legal claim for justice under the laws of Indiana and Illinois. Please be careful out there!
