The global pandemic created by COVID-19 “Coronavirus” will create multiple issues for the workers’ compensation industry. This will include potential work related Coronavirus claims. There will also be ancillary ripple effects related to things such as court closings, business closings, delayed surgeries, etc. This memorandum is an analysis of those issues.
An individual diagnosed with COVID-19 could pursue a potentially compensable claim under the Illinois Occupational Diseases Act or Illinois Workers’ Compensation Act. In light of the fact that we are dealing with a virus, we believe the most likely choice of remedy would be for a claimant to pursue a claim under the Occupational Diseases Act, although it is foreseeable that claims could also be filed under the Workers’ Compensation Act. The Occupational Diseases Act provides benefits based on the rates established in the Worker's Compensation Act.
The defense to an alleged work related Coronavirus claim is that there is no greater risk than the general public. However, we know there will be certain occupations that will face exposure to a greater risk than the general public. Some of these categories might be obvious, and others might be less apparent.
The Occupational Diseases Act states:
"A disease shall be deemed to arise out of the employment if there 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 disease. The disease need not to have been foreseen or expected but after its contraction it must be apparent to have had its origin or aggravation in a risk connected with the employment to have flowed from that source as a rational consequence.” 820 ILCS 310/1(d)
There is nothing in the statute that requires direct proof of causation. Sperling v. Industrial Commission, 129 Ill.2d.416, 421, 135 Ill.Dec. 794, 544, N.E.2d 290, 292 (1989) Case law has held that causation may be based on a medical expert's opinion that an accident "could have" or "might have" caused an injury. A chain of events suggesting a causal connection may suffice to prove causation even if the at the analogy of the disease is unknown. Consolidation Coal Co. v. Industrial Commission, 265 Ill.App.3d 830, 839, 203 Ill.Dec. 327, 639 N.E.2d 886, 892 (1994)
The Act further states:
“Any injury to or disease or death of an employee arising from the administration of a vaccine, including without limitation smallpox vaccine, to prepare for, Or as a response to, a threatened or potential bioterrorist incident to the employee as part of a voluntary inoculation program in connection with the person's employment or in connection with any governmental program or recommendation for the inoculation of workers in the employees occupation, geographical area, or other category that includes the employee is deemed to arise out of and in the course of the employment for all purposes under this Act.”
What type of employees can bring a successful claim for benefits after contracting the Corona Virus?
There are three primary categories of employees to examine in terms of potential claimants:
1. EMPLOYEES IN THE HEALTHCARE INDUSTRY
This group would include employees such as physicians, nurses, physician’s assistants, assistant nurses, lab techs, nursing/care home workers, office staff, and any other individuals in locations such as clinics, hospitals doctor’s offices etc. These individuals would all appear to have a very strong argument that the nature of their employment exposes them to a risk greater than the general public. Claims from this category could have a high likelihood of success.
2. EMERGENCY RESPONDERS
Similar to the first category of employees discussed, this group also would appear to have a very strong argument that they have a greater risk of exposure to the coronavirus.
The Occupational Disease Act has some unique provisions with regard to several categories of emergency responders. The Act states as follows:
Any condition or impairment of health of an employee employed as a firefighter, emergency medical technician (EMT), emergency medical technician intermediate (EMT-I), advanced emergency medical technician (A-EMT), or paramedic which results directly or indirectly from any blood-borne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer result in any disability (temporary, permanent, total, or partial) to the employee shall be rebuttable eat presumed to arise out of and in the course of the employees firefighting, EMT, EMT-I, a-EMT, or paramedic. However this presumption shall not apply to any of the employees in the above referenced categories will be employed in those occupations for less than five years at the time he or she filed an application for adjustment of claim. Rebuttable presumption established in this section also does not apply to an EMT, EMT-I, a-EMT or paramedic employed by a private employer if the employee spends a preponderance of his or her work time for the employer engaged in medical transfers between medical care facilities or non-emergency medical transfers to or from medical care facilities. The findings and decision of the Illinois Worker's Compensation Commission under only the rebuttable presumption provision of this paragraph shall not be admissible or deemed res judicata and any disability claim under the Illinois Pension Code arising out of the same medical condition.
3. OTHER EMPLOYEES
The first two categories of employees appear to be rather obvious in terms of being exposed to the virus at a greater risk than the general public. However, there could be other groups of employees making a similar argument in less obvious occupations. These could include employees who either directly interact with the public, work in close confines with others, or who clean facilities. Some examples are:
-Employees in the travel industry. This could include ticket agents, cleaning crews, etc. The strongest claim would most likely be from those in the aviation and cruise industries.
- Employees in the hospitality industry. This could include all forms of hotel employees.
- These two groups referenced above could have a strong claim for greater risk to exposure based on the nature of their employment as they would be required to come in contact with a wider geographic population including those from abroad.
-Traveling employees. Individuals that are in sales marketing etc. and required to travel for work.
-Certain employees in the retail industry. Pharmacist, pharmacist techs, and like employees could probably make an analogy that they are in a similar group as hospital or medical staff.
-Cleaning and maintenance crews.
-Much farther removed, but still a potential group to consider are certain retail employees who are required to continue working even in the event of a quarantine or isolation zone.
We know that internationally, several countries including China, Korea and Italy have created containment/quarantine zones and left open only certain essential businesses such as grocery stores. In the United States we have already seen an area in the state of New York establish a quarantine zone. If certain businesses such as grocery stores are allowed to stay open those employees would presumably be required to continue working while others in the public would not. These employees could potentially make an argument that the nature of their employment caused them to be exposed to the virus greater than the public. Expert medical testimony or at least opinion testimony from a treating doctor would likely be required to successfully pursue a Corona Virus claim under this theory.
What type of benefits could an employee recover for contracting the Corona Virus?
In terms of benefits, they would be the same as under the Occupational Diseases Act and Worker's Compensation Act. Employers would have the obligation, if the case is compensable, to pay medical bills, temporary total disability and permanent partial disability. The highest cost for this type of claim would most likely be associated with the medical bills and temporary total disability benefits. At this point, it is too early to determine the extent of any permanent residual effect from the disease.
What steps should be taken with regard to an alleged Coronavirus claim?
- Confirm the diagnosis. There is the possibility that people will be alleging suspected Coronavirus symptoms without an actual diagnosis. There are currently a lack of testing kits. The diagnosis must be confirmed!
- Get a detailed history of the job duties. Confirm whether their job required interaction with the general public and if so, to what extent.
- Obtain a detailed medical history from the claimant.
- Obtain information about medical providers, prior treatment and if possible the primary care physician.
- Determine whether any other employees were diagnosed with the virus. For example was the claimant the only diagnosed out of 50 employees?
Other issues to consider:
- If a claimant refuses to attend an IME will that be considered a reasonable basis not to attend the exam? An individual could argue they do not want to put themselves in harm’s way by going to a physician's office and potentially increasing the likelihood of exposure. We suggest examining that issue on a case by case basis.
- If a claimant does attend an IME and subsequently develops coronavirus, is it now part of their Worker's Compensation claim? In order to do this, they would have to prove by the preponderance of the evidence that the coronavirus was due to attending the IME. That would appear to be a very difficult argument for the petitioner. There are numerous ways that an individual can be exposed to and catch the virus.
- If a claimant is scheduled for surgery is it reasonable for them to reschedule that procedure to a later date? There could be an argument that again they will be exposed to a greater chance of catching the virus by being in a medical facility. Furthermore they could have concerns that due to the surgery, anesthesia, etc. they could be weakening their immune system and thus susceptible to further injury if they do catch the virus. This argument would need to be supported by a medical opinion.
- If surgeries or treatment is delayed to the Coronavirus then TTD will need to continue as long as there are restrictions in place that cannot be accommodated.
- In each of these scenarios, it is expected the commission will look at the situation from what they would deem to be a "reasonable standard". It is expected that individuals will most likely be given a bit more leeway for a missed IME or potentially postponing surgery. This does not mean that we have to acquiesce to or agree with these positions. They can still be challenged before the arbitrator. As with all cases, the circumstances and particular facts of that case tend to drive the results. If it is a "clean" case with a claimant that has had no prior issues or problems, then the commission will probably give them more leeway. Conversely if it is a situation with a claimant that already has a history of delay, excuse etc. then they might be given less leeway by the commission.
These are challenging times and unusual circumstances for us all. Please feel free to reach out to any member of our Illinois Worker's Compensation team with any questions. We are always glad to help.