In Edgar Lucero v. Focal Point LLC., (22 IWCC 0231) the Illinois Workers’ Compensation Commission affirmed and adopted the very first COVID-19 litigated case in Illinois, in favor of the Petitioner. The Commission affirmed the Arbitrator’s decision unanimously with no dissenting opinions.
As a brief overview, an amendment to Section 1(g) of the Illinois Workers’ Compensation Act created a rebuttable presumption in favor of front-line workers and first responders who were allegedly exposed to COVID-19 in the workplace in the timeframe March 9, 2020 to June 30, 2021. For those workers, the exposure and contraction of COVID-19 was presumed to have arisen out of the employment and occurred in the course of the employment.
The presumption is an “ordinary” one, meaning that that the employer can rebut it with “some” evidence. If the employer successfully rebuts the presumption, the burden shifts back to the Petitioner to prove that he or she contracted COVID-19 at work. Although the presumption expired on July 1, 2021, it applies to the bulk of COVID-19 cases that I have handled and covers the most serious and deadly cases of COVID-19.
So far, there have only been two decisions rendered involving the rebuttable presumption, perhaps due to the uncertainties associated with new law and its application. Practitioners may have been quick to settle cases on a disputed basis rather than proceeding to trial due to these uncertainties. There are likely even more cases waiting to go to trial with the attorneys waiting to see how decisions involving the presumption play out.
Nearly a year ago, Arbitrator Amarilio issued the first COVID-19 case involving the rebuttable presumption in Illinois. The Arbitrator concluded that the Respondent successfully rebutted the presumption with evidence of both workplace preventative measures and possible alternative sources of infection. Given that the presumption was rebutted, the burden shifted to the Petitioner to prove that he contracted COVID-19 at work.
Despite the Respondent’s efforts to mitigate the spread of COVID-19 in the workplace, the Arbitrator found that the Petitioner met his burden of proof and that his exposure and contraction of COVID-19 was work related. In making such a conclusion, the Arbitrator noted that (1) 10-15% of the Respondent’s workforce tested positive for COVID-19 less than two weeks after Petitioner’s last day of work; (2) Petitioner had no known COVID-19 positive close contacts outside of work; and (3) the Respondent’s efforts were ineffective or incomplete to prevent the spread of COVID-19 at its plant.
Despite holding that Respondent did rebut the presumption, the Arbitrator appeared to put some of the burden of proof on Respondent stating that, “Respondent did not produce persuasive evidence that Petitioner contracted the COVID-19 virus outside of work and clearly not enough evidence to negate Petitioner’s work-related COVID-19 virus exposure.” In support of his conclusions, the Arbitrator noted that there were a significant number of COVID-19 cases at Respondent’s facility in the month that Petitioner became ill and stated that it was “increasingly likely that Respondent’s facility was the only place Petitioner could have contracted the virus.” My partner, Amy Bilton, wrote a much more detailed analysis of the Arbitrator’s decision in a previous blog.
Respondent appealed the decision to the Illinois Workers’ Compensation Commission. Commissioners Harris, Doherty, and Parker affirmed and adopted the Arbitrator’s decision without further comment on June 22, 2022. One frustrating aspect of the Commission decision was the fact that the Arbitrator’s decision was affirmed and adopted without any commentary. The Commission did not weigh in on Arbitrator Amarilio’s comments that the Respondent’s evidence was “too good to be true.”
The Respondent has appealed the decision to the Circuit Court of Cook County and the parties are currently drafting briefs. In my experience, the Circuit Court often “rubber stamps” Commission decisions and I suspect that the decision will be affirmed and adopted. If so, the Respondent will need to determine whether it wishes to take the case to the Appellate Court. There are always uncertainties with creating new Appellate Court-level law. The implications of new case law will only apply to COVID-19 cases between March 9, 2020 and June 20, 2021 but could have significant impact on how the remaining cases for exposure during that period are resolved.
Stay tuned to the NBKL blog for further updates as these issues progress through the court system and do not hesitate to reach out to us here with any questions regarding your COVID-19 cases.