The moment Illinois workers’ compensation professionals have been waiting for has finally arrived! On October 21, 2021, Arbitrator Amarilio issued the first decision addressing Illinois’ COVID-19 presumption in the case of Edgar Lucero v. Focal Point, LLC (20 WC 18985). In a 42-page decision, Arbitrator Amarilio found the employer overcame the rebuttable presumption that this front-line employee’s COVID-19 condition was work related but also found Petitioner met his burden in proving he more likely than not contracted COVID-19 at work.
Petitioner was employed by a manufacturing company as a machine operator. This business was considered “essential” under the Governor’s Executive Order in place at the time. On March 21, 2020, Petitioner developed a cough that ultimately was determined to be due to COVID-19. Petitioner testified his life revolved around work and home and that none of his family members became ill before his cough began. Petitioner last worked on April 13, 2020 and was admitted to a hospital a week later with symptoms which his wife reported started on April 17, 2020.
Much of the trial testimony centered around the conditions of Petitioner’s employment at the facility, including the location of his workstation, interactions with co-workers and safety measures put in place by the employer. The employer introduced evidence of the efforts it took, and the contingency plans in place, during the initial phase of the pandemic. These included hand wash stations, hand sanitizer stations, virtual meetings, sanitization efforts and some masking. The employer testified masking was highly encouraged starting in March of 2020, but admitted they were unable to provide masks to their employees due to the nationwide mask shortage. Respondent also introduced evidence that the COVID-19 positivity rates in the ZIP code where Respondent was located were higher than the positivity rates shown by Respondent’s employees.
The Arbitrator noted the presumption of exposure at work was an “ordinary” presumption, meaning the employer need only introduce “some evidence” that the employee’s occupation was not the cause of the injury or disease. He pointed out the presumption merely shifts the burden of production, not the burden of persuasion, and operates in the employee’s favor only if the employer presents no evidence to rebut causation. The Arbitrator outlined three ways the employer may rebut the presumption: by demonstrating the employer complied with recommended CDC or IDPH guidelines in the 14 days prior to the diagnosis; by presenting some evidence that the claimant contracted the virus elsewhere; or by showing the claimant worked from home or was off work in the 14 days prior to the diagnosis. The Arbitrator also noted that, once the presumption is rebutted, the Petitioner must establish by a preponderance of the evidence that he contracted COVID-19 at work.
Despite finding that much of the evidence presented by the Respondent was reliable, stating Respondent was likely painting itself in a much more favorable light than was true, the Arbitrator nonetheless found Respondent presented “some evidence” of both workplace preventative measures and possible alternative sources of infection, which he found was sufficient to rebut the presumption under the first and second prongs above. Specifically, the Arbitrator pointed to hand sanitizer, PPE, posted signs, COVID policies implemented, office work from home mandates for some, new cleaning and frequency protocols, the addition of handwashing stations, replacement of paper towels with dryers, social distancing, and communal kitchenware being removed as being “some evidence” needed to overcome the presumption. The Arbitrator also found Respondent provided “some evidence” of possible alternative sources since he lived with others who were out working as essential workers.
With the burden being back on the Petitioner, the Arbitrator nonetheless found Petitioner met his burden of proving that more likely than not he contracted COVID-19 at work. He pointed to no known COVID-positive close contacts, ineffective or incomplete preventative measures at the workplace and the rate of positive cases in the plant overall in support of his findings. Accordingly, the Arbitrator awarded benefits.
This decision demonstrates what we have always suspected: that the rebuttable presumption may not be difficult to overcome if the employer took “some” steps to try to mitigate the exposure of COVID-19 in the workplace. While employers may not need to be entirely successful at stopping the spread of the COVID-19 virus within the workplace in order to overcome the presumption, the Commission will still focus on whether it is more likely than not that the employee contracted COVID-19 at work versus elsewhere. The credibility of each piece of evidence will be weighed.
My message to employers is this: provide all documentation supporting the efforts taken by your company around the time of the COVID contraction, juxtapose those measures with the CDC and IDPH guidelines, and clearly assess whether your workplace was successful in preventing the spread of COVID around the time of the worker’s infection. Furthermore, a deep dive into contact tracing, both in and out of the workplace, is imperative in tipping the scales in defending COVID-19 claims. Simply having PPE is not likely to be enough.
Our team of attorneys love handling tough cases like these, and are happy to assist in the defense and/or analysis of your risk and exposure on any COVID-19 cases filed against your company. Feel free to reach out to us if you need assistance.