🎬 Take Two: Rebutting the COVID-19 Presumption

Nov 24, 2021

 

The second COVID-19 presumption case has been decided! On November 3, 2021, Arbitrator Cantrell issued a decision in the case of Tonia Dalton v. Saline Care Nursing and Rehabilitation Center (21 WC 008010), once again addressing Illinois’ COVID-19 presumption. Spoiler alert: The Arbitrator found Respondent failed to rebut the presumption set forth in 820 ILCS 310/1(g)(6).

Petitioner worked the midnight shift as a CNA at a nursing home. She was a “COVID-19 first responder or frontline worker,” who experienced symptoms consistent with COVID-19 during her shift on November 5, 2020. She tested positive for COVID-19 on November 6, 2020. Petitioner lived with her fiancĂ©, who tested negative for the virus. Petitioner stated she spent little time at places other than work and home from October 23, 2020 through November 6, 2020. She also denied visiting family during that time period.

Both Petitioner and her co-worker, Billi Headrick, offered testimony about the conditions at the nursing home where they worked. Employees were required to wear masks, goggles, and gowns when caring for patients in the COVID-19 wing. Staff moved throughout the nursing facility, caring for patients between the COVID and non-COVID wings. Petitioner described what she believed was a lack of health and safety practices at Respondent’s facility, including a shortage of soap, ill-fitting gloves, questionable cleaning practices, and issues with PPE while entering the COVID wing. Ms. Headrick also worked as a CNA with Petitioner in both wings of the nursing home between October 23, 2020 and November 6, 2020. She tested positive for COVID-19 on November 3, 2020. On November 4, 2020 and November 5, 2020, Ms. Headrick and Petitioner worked together while wearing PPE. Despite having COVID symptoms after she tested positive on November 3, 2020, Ms. Headrick did not quarantine or stop working as she said Respondent did not ask or order her to do so.

Merle Taylor then testified on behalf of Respondent. Ms. Taylor worked for WLC Management Firm as a licensed nursing home administrator. Her duties include working with administrative staff for all WLC Management Firm’s facilities. Ms. Taylor testified she prepared in-service training documents and developed policies disseminated to Respondent’s staff pursuant to guidance from the CDC, IDPH, and CMS. She identified invoices detailing PPE purchased for Respondent’s facility from March through December 2020, including, but not limited to hand sanitizer, gowns, N95 masks, face shields, gloves, and plastic to cover COVID-positive residents’ doors in case a facility did not have a COVID dedicated unit. She denied any complaints from any of the facilities about lack of PPE. Ms. Taylor testified she mostly worked from home, with periodic visits to Respondent’s facility. She could not confirm how Respondent’s facility used PPE on a day-to-day basis other than witnessing staff using PPE during her periodic visits. Ms. Taylor could not confirm when exactly she visited Respondent’s facility between March and November 2020. Ms. Taylor stated there was an outbreak at Respondent’s facility with over 50% of the 100 residents testing positive for COVID-19 from October 24, 2020 through November 14, 2020. She explained how Respondent was in compliance with COVID policies when allowing Ms. Headrick to work with COVID-19 symptoms because the outbreak caused an emergency staffing situation.

The Arbitrator outlined three ways an employer may rebut the presumption of exposure at work: by showing the claimant worked from home or was off work in the 14 days prior to the diagnosis; by presenting some evidence the claimant contracted the virus elsewhere; or by demonstrating the employer complied with recommended CDC or IDPH guidelines in the 14 days prior to the diagnosis. Here, there was no evidence Petitioner worked from home or was off work in the 14 days prior to her diagnosis. The Arbitrator also found Respondent failed to present evidence demonstrating Petitioner contracted the virus elsewhere. Finally, the Arbitrator found Respondent failed to introduce evidence of its specific actions to reduce the transmission of COVID-19 in the fourteen days prior to November 6, 2020 at the nursing home where Petitioner worked.  As a result, Respondent failed to rebut the presumption.

Even though Ms. Taylor testified about policies and procedures she implemented at all of the facilities, she lacked firsthand knowledge of what occurred at Petitioner’s specific workplace. She could not provide evidence there was a staffing shortage allowing Ms. Headrick to work despite her COVID-19 symptoms. The Arbitrator also highlighted unrebutted testimony outlining how the nursing home failed to provide workplace sanitation, follow health and safety practices, and provide adequate PPE. Specifically, Petitioner testified masks were defective, gloves were too large, sanitizer was not always available outside residents’ rooms, and employees had to travel down the COVID unit hallway to obtain gowns in a bathroom also used by COVID-positive residents. Further, high touch environmental surfaces were not disinfected every two hours during Petitioner’s shift in the COVID wing.

Even assuming arguendo that Respondent presented sufficient evidence to rebut the presumption, the Arbitrator stated she would still find Petitioner proved by an overwhelming preponderance of the evidence her exposure on November 6, 2020 arose out of and in the course of her employment and her current condition of ill-being was causally related to her injury on that date.  Benefits were awarded.

As you defend these COVID cases, think about your efforts to prevent the spread of COVID in your workplace around the time of the worker’s alleged exposure. Will you be able to overcome the presumption? What documentation do you have demonstrating you are in compliance with CDC and IDPH guidance? What contact tracing efforts do you employ? How do you disseminate your policies and procedures to your employees? Who has firsthand knowledge necessary to testify about your sanitation practices, use of PPE, as well as your policies and procedures in effect prior to the alleged COVID exposure?

Please do not hesitate to reach out to our team of attorneys with any questions regarding your COVID-19 cases. We are happy to analyze your risk and outline your exposure.

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law. 

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-Larry Collins, Senior Director, Risk Management Marriott Claims Services, Chicago

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