New emergency rules enacted by Illinois workers’ compensation regulators have drawn a lawsuit by a pair of trade associations representing retailers and manufacturers in the state.
The Illinois Manufacturers’ Association (IMA) and the Illinois Retail Merchants Association (IRMA) allege in a lawsuit filed in the 7th Judicial Circuit Court of Illinois in Sangamon County that the Illinois Workers’ Compensation Commission and Commissioner Michael J. Brennan overstepped their regulatory authority by creating emergency amendments to the Illinois Workers’ Compensation Act and the Illinois Workers’ Occupational Diseases Act that expand benefits for workers deemed essential as a result of the COVID-19 pandemic.
On April 16 the IWCC announced the emergency amendments, which create “a reasonable rebuttable presumption that a first responder or front-line worker’s exposure to the virus is connected to their employment.”
The emergency rules were enacted in response to the state of emergency due to the COVID-19 pandemic declared by Gov. J.B. Pritzker in mid-March.
The new emergency rules are set to expire after a period of 150 days. As stated in the IWCC’s notice, they are designed to “ensure in any case before the Workers’ Compensation Commission where any COVID-19 First Responder or Front-Line Worker … is exposed to COVID-19 during the State of Emergency, it will be rebuttably presumed that the individual’s exposure arises out of and in the course of their COVID-19 First Responder or Front-Line Worker employment and rebuttably presumed to be causally connected” to their job.
IWCC defines first responders and front-line workers as “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 in the governor’s executive order.
The lawsuit filed by the IMA and IRMA contends that the emergency amendments violate state law by “creating a rebuttable presumption in favor of the claimant that the claimant in fact contracted COVID-19 in the course of his/her employment.”
The amendments, the lawsuit alleges, “unlawfully create new substantive rights for employees and new liabilities for employers in violation of the Illinois Administrative Procedure Act.”
It maintains that Brennan and the IWCC have no legal authority to “create new substantive rights.” Only the legislature has the power to do that, the suit asserts.
Plus, the lawsuit states, the expanded “substantive rights” broadly extend beyond healthcare workers, and first responders such as police, firefighters and emergency medical personnel to employees of grocery stores, hotels, banks, laundries and other businesses deemed crucial by the governor’s executive order.
Arkansas, Florida, Kentucky, Michigan, Missouri, North Dakota and Washington, have taken steps — either via executive orders or amended rules — to expand workers’ compensation eligibility in light of the current health crisis. In other states, legislators have taken action either passing or introducing bills aimed at expanding workers’ comp benefits due to COVID-19.
Philadelphia defense attorney Cliff Goldstein told Claims Journal, an Insurance Journal sister publication, that he expected an avalanche of presumption bills as reports of the disease spreading into the United States surfaced.
“I don’t think there’s any way to stop that steamroller,” he said.
Goldstein said employers should investigate each claim individually and resist the temptation to quickly approve such claims based on an employee’s job category.
However, the trade groups’ Illinois lawsuit alleges the amendments present businesses with an “unnecessary Sophie’s Choice: acquiesce to paying the employee’s medical bills at the outset or face harsh penalties for trying to overcome the virtually irrefutable presumption regarding COVID-19 claims.”
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