As of Friday, May 22nd, the Illinois legislature passed House Bill 2455. Awaiting Governor Pritzker’s signing, HB 2455, among other matters, reinstates the “rebuttable presumption” for essential workers who presumably contracted COVID-19 at work. This is a major piece of legislation that will undoubtedly have a major impact on workers’ compensation claims related to COVID-19.
What is the “rebuttable presumption”?
Suppose you think you caught COVID-19 at work. Before HB 2455, you would have had the initial burden of proving the source of your exposure related to your employment. After HB 2455, however, that you caught the virus at your work becomes a presumption that must be rebutted by your employer. In other words, the “rebuttable presumption” relieves you of having to prove your exposure arose out of or in the course of your employment.
However, employers can shift this evidentiary burden back. By demonstrating that proper protections and practices were established at the workplace at least 14 days prior to the onset of your symptoms or your positive diagnosis, an employer can shift the burden back on you to prove that those protections and/or practices were not appropriate or sufficient. The legal standard of those protections/practices are set by the Federal Center for Disease Control (CDC) or the Illinois Department of Public Health (IDPH).
Alternatively, an employer can rebut the presumption by showing that you had been working from home for 14 or more days before contracting the virus, or else proving that you were exposed by a source outside the workplace.
Who is eligible for the “rebuttable presumption”?
The rebuttable presumption is available to all “COVID-19 first responders or front-line workers.” HB 2455 defines this class of persons as:
“all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all individuals employed and considered as first responders; all workers for health care providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers…”
Included in this class are:
“any individuals employed by essential businesses and operations as defined in Executive Order 2020-10 dated March 20, 2020, as long as individuals employed by essential businesses and operations are required by their employment to encounter members of the general public or to work in employment locations of more than 15 employees.”
With reference to Governor Pritzker’s March 20th COVID-19 Executive Order #8, “essential businesses and operations” include stores that sell groceries and medicine; critical trades, such as plumbers, electricians, exterminators, janitors, painters, and more; media; gas stations and businesses necessary for transportation; hardware and supply stores; shipping and delivery services; laundry services; residential facilities and shelters; hotels and motels; funeral services; etc. For a complete list of industries and work related to “essential workers,” see Governor Pritzker’s March 20th COVID-19 Executive Order #8, paragraph 12.
The “rebuttable presumption” is available for infections occurring between March 9 – December 31, 2020.
That’s right: according to the Illinois State Bar Association, the expectation is that, once signed, the HB 2455 would have retroactive effect dating back to March 9, 2020—before CDC and IDPH guidelines were widely followed. This means that even if you’re no longer sick with COVID-19 but you think you were infected while at work sometime after March 9th, you could be due compensation. The availability of the “rebuttable presumption” expires on December 31, 2020, at the end of the year.
If you believe you were exposed to COVID-19 while at work, Grazian & Volpe are here to get you the money you deserve. For a free consultation, call us at 773.838.8100, email us at Attorney@GrazianVolpe.com, or fill out our online form.
The spread of COVID-19 across Illinois has resulted in many work-related infection claims. If you have been diagnosed with COVID-19 that was related to your workplace conditions, you can pursue a potentially compensable claim under the Illinois Occupational Diseases Act.
The employer’s defense to an alleged work-related COVID-19 claim likely will be that there was no greater risk of infection to the worker at the workplace than there is to the general public. But from news reports and health agency investigations, we know that certain workplace occupations and industries (for example, meat packers) do face exposure to a greater risk than the rest of the general public.
For the protection of workers, the Illinois Occupational Diseases Act provides:
“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).
But the Illinois Occupational Disease statute does not require direct proof of causation. Sperling v. Industrial Commission, 129 Ill.2d.416, 421, (1989). A worker’s medical expert opinion that an accident “could have” or “might have” caused an injury may be sufficient. Also, a chain of events suggesting a causal connection may suffice to prove causation. Consolidation Coal Co. v. Industrial Commission, 265 Ill.App.3d 830, 839 (1994).
Here at Grazian & Volpe, we’ve already begun receiving clients with workplace transmissions of COVID-19. If you believe you were infected with COVID-19 in your workplace, we know what to do and we’re here to help you. Contact us by phone at 773.838.8100 or fill out our online form to schedule your free initial consultation with an experienced attorney.
It was not too long ago that Chicago employers held on tightly to traditional notions of gender roles in the workplace. Certain jobs were for men only, while fewer jobs were open to women only, and that was that. Such barriers continue to break down today, and more and more women are succeeding in jobs that used to be held out of their reach, and the same is true of men. A perfect example of this is the construction workforce, which experienced an influx of 81.3 percent more female workers from 1985 to 2007.
Since 2007, however, the number of women working in construction has steadily declined. Part of the reason women have left the industry, according to the Occupational Safety and Health Administration, is because it is very dangerous. Although employers are legally obligated to provide all employees with working conditions that are free of hazards, construction sites are full of safety and health risks that specifically endanger women.
One very significant problem is the fact that much of the protective gear that is used on construction sites is designed for men. The gear often does not fit women, and as a result it fails to protect them from injuries.
According to the National Association of Women in Construction, women also face hazards related to workplace culture, training and ergonomics. NAWIC has now partnered with OSHA in order to focus on mitigating these very serious safety risks.
Employers of construction workers in Illinois should be aware that they are required by law to provide safe working conditions and training for all of their employees. Even if only one employee is female, female-specific safety concerns must be addressed. Preventable safety risks should not be a barrier to employment.
Those who are injured in construction accidents, whether they are male or female, should contact a construction accident attorney. Workers’ compensation benefits should be available to injured workers and in some cases employers or other parties should be held liable.
Source: Risk and Insurance, “Partnership targets women at risk in construction,” Oct. 21, 2013
Source: OSHA.gov, “Women in Construction,” 2013
If you are injured at work, do not be bullied by your employer into choosing the company doctor. Doctors are hired by companies to put you back to work and the horror stories abound where employees are sent back to work before they are fully healed.
Don’t be bullied.
When you are injured in the workplace your employer may compel you to see the company doctor or industrial clinic. However, you may and should see the doctor of your choice. The doctor chosen by your employer was chosen because he or she renders treatment and diagnosis that are most favorable to your employer. This means they may advise less beneficial, cheaper treatments and are focused on getting you back to your employer’s workplace as soon as possible. In addition and most disturbing is that the doctor recommended by your employer is not liable for any malpractice that they commit during the course of treating you! Your employer can compel you to see the company doctor or industrial clinic of their choice. However, if you are not satisfied with that treatment, you can and should insist on seeing the doctor of your choice.
Your employer won’t tell you that you can choose your own doctor and will encourage you to remain with the company doctor or preferred industrial clinic. Remember, you have the choice! Choose the doctor that will work for your best interest and not your employers. Many employees worry that insisting on their rights may result in losing their job however this is retaliatory discharged and not permitted under the law. If your employer fires you because you insist upon your rights, they will face additional liability and you will be entitled to additional compensation (see blog, Grazian and Volpe, July 27, 2011 Workers’ Compensation and Machine Guarding).
We have been writing about the effect of the new changes to worker’s compensation on our Chicago Injury Attorney and South Chicago Accident Lawyer blogs since the Illinois Legislature finalized the rules. It is not more important then ever that an injured worker confer with their worker’s compensation attorney, most beneficially with a law firm that combines the expertise of workers’ compensation and personal injury(See Grazian and Volpe Blog dated 8/3/2011 Workers’ Compensation May Not Be All).
Grazian and Volpe has been Chicago’s Injury Lawyers for over 30 years and we are dedicated to advocating on the behalf of all injured plaintiffs whether the accident occurred in or outside the workplace. Remember to call Grazian and Volpe as soon as you are able. When injured in the workplace look for a firm that combines expertise in workers compensation and personal injury.
According to a recent NewsTribune analysis, workers’ compensation claims in the Illinois Valley have fallen by 20 percent in the past two years.
The regional decline of workers’ compensation cases is steeper than that in the state as a whole, with a 32 percent decrease in cases filed in 2011 compared with a decade ago. The main factor for the decline is the high unemployment rate due to recession.
However, some observers believe that legitimate claims are not being reported because workers are afraid to file for fear of losing their jobs in a down economy. It is further claimed that employers are taking advantage of this fear by discouraging workers from filing, and then, if the injury worsens, attempting to claim that the injury is therefore unrelated to work.
The Illinois Workers’ Comp System
For those not familiar with the topic, workers’ compensation is a no-fault system where benefits are paid to employees for workplace accidents that are caused, in part or whole, by their work. Almost all employees are covered by workers’ compensation, and employers pay for the claims via insurance policies.
If the case is not settled between the employee and the employer, an arbitrator will hear the case. The arbitrator’s decision may be appealed to a civil district court, as well as the Illinois Appellate and Supreme courts.
However, while the appeal is pending-which can often take years-an employee who is severely and permanently injured cannot receive the benefits awarded by the arbitrator. One recent example involves an Illinois Valley man who recently won a workers’ compensation judgment against Wal-Mart. However, Wal-Mart has appealed the judgment and he must wait to receive his benefits until the appeals process is finalized.
Seeking the help of an experienced workers’ compensation attorney who understands the law and procedures is vital.
Source: newstrib.com, Works comp cases fall, Tom Collins, Aug 27, 2012
While they might seem like a good idea, the Government Accountability Office says safety incentive programs, like rate-based programs, can actually discourage workers from reporting injuries and illnesses to their employers.
Rate-based programs are implemented to benefit workers who achieve low rates of illnesses or injuries. Experts say the program, which is used by about 22 percent of manufacturers, might reward healthy workers with a prize or bonus at the end of the year for their safe work practices. This, according to GAO, leads workers to cover up their injuries or illnesses.
Instead of utilizing rate-based programs, the GAO recommends manufacturers consider a behavior-based program. These types of reward concepts offer positive incentives that promote employee participation in safety-based activities, like participating in investigations of incidents or near misses, or identifying hazards. Rather than gifting the team who had no injuries or illnesses in the past year, the behavior-based program provides perks to those who suggest ways to improve safety and health.
In 2010, the survey indicates that about one-quarter of manufacturers used safety incentive programs. Only about one in seven had implemented a behavior-based program.
The same survey also reported about 70 percent of manufacturers had demerit systems, which aim to punish employees for dangerous workplace behaviors. More than half required post-incident alcohol and drug tests – another potential deterrent for workers injured on the job from saying anything about their suffering.
To try and correct the problem, the GAO has made some recommendations to OSHA that it provide clear guidance to manufacturers about the use of safety incentive programs and other safety policies. OSHA says it plans to address them.
Source: Risk & Insurance, “Safety incentives could lead to fewer reported injuries, illnesses,” June 4, 2012
Illinois residents know how important workplace safety is and how costly injuries occurring at work can be. Fortunately, workers’ compensation benefits are available to help cover some of these costs.
However, a new study reveals that workers’ compensation insurance was not utilized nearly as much as it should have. Premiums, thus, do not accurately reflect the true cost of workplace injuries and illnesses.
The differences in payments are significant. In 2007, only 21 percent of annual costs for workplace injuries and illnesses were covered by workers’ compensation, with the remaining 79 percent coming from a combination of programs such as Medicare or Social Security. Injured workers themselves also directly paid a large amount of the medical costs.
The results of this study suggest many negative consequences. For instance, taxpayers end up paying higher Medicare premiums and income taxes. Additionally, there is less incentive for employers to promote workplace safety because they might rely on other forms to help pay the cost of workplace injuries.
Is it Dangerous to File a Workers’ Comp Claim?
It is thought that perhaps there is a stigma associated with filing workers’ compensation claims. Many might falsely believe they might be fired or demoted or looked at in a bad light by their employer if they file a workers’ comp claim after being injured on the job.
However, it’s vital for all employee to seek out coverage if they are injured. The law requires employers to pay for their employees to get back on their feet and cannot fire them in any circumstance for filing a claim.
Seeking the assistance of a workers’ compensation attorney who can help you with your claim is advised.
Source: Futurity.org, “Most job injury costs not paid by worker’s comp,” Karen Finney, June 1, 2012
The Chicagoland Accident Lawyers at Grazian and Volpe specialize in premises liability issues and find that the vast majority of cases involve personal injury. A recent case involves a hidden stairway and the tragic wrongul death of a 21-year-old college student. Samuel Jacob Freeman sought out a quiet alcove in a bar he was patronizing to conduct a cell phone conversation. In his quest, he fell backward down a flight of 12 wooden stairs, striking the back of his head on the landing below. He suffered a severe subdural hematoma and traumatic brain injury from which he died several days later.
His parents as individuals and on behalf of his estate sued the bar’s owner alleging that the stairs were dangerous and violated the state building code (the accident occurred in Massachusetts). Key in the allegations were the following: 1) Plaintiff’s contention that the stairway lacked adequate lighting and code compliant handrails and; 2) that the individual steps lacked proper riser heights and tread depth which rendered them dangerously steep and, 3) that the entrance to the stairway was covered only by dark-colored vinyl strips and not a self closing door as required by the building code.
In addition to the negligence and strict liability code violations, the plaintiffs alleged that breach of the building code violated the state’s unfair and deceptive trade practices act. Under state law, violation of the a statute intended to protect the public’s health and safety may constitute a violation of the trade practices act.
The trail court submitted the negligence and statutory strict liability claims to the jury but reserved the unfair trade and deceptive trade practices claim. The jury found that the defendants were negligent and had violated the building codes but that these were not constitute the proximate cause of Freeman’s fatal injuries.
Most interestingly, the court found that the defendant’s violations of the state building codes constituted a violation of the state unfair and deceptive trade practices act and awarded treble damages totaling approximately $6.73 million.
The Chicago and South Chicago Accident Lawyers at Grazian and Volpe find this case an interesting study in the litigation of premises liability and very informative in stating the prima facia case for accidents sustained during falls on stairs. However the addition of the violations of the state’s unfair and deceptive trade practices act opens the door to other means to hold landlords and owners of premises open to the public liable for their negligence or disregard for code violations and basic issues of building safety.
Out of the four seasons, winter is particularly hazardous when it comes to workplace injuries – especially when working during or after a snow storm. To keep workers safe during the colder months, the Occupational Health and Safety Organization recommends employees take note of some important safety tips.
Top Wintertime Working Hazards
Cold weather, unfortunately, causes many different hazards including:
- Icy roads and surfaces, whether a job involves driving or walking outdoors
- Frostbite on exposed parts of the face or hands
- Hypothermia due to being inadequately dressed
- Dehydration from performing vigorous, physically demanding work
Dangers of Heavy Snow
Heavy snowfalls also bring their own set of dangers. Roofs often collapse under the weight of snow, and workers can easily fall when using ladders or lifts to clear snow from roofs – or even if they’re standing on the roof itself. OSHA suggests taking smaller scoops and using proper lifting techniques so you don’t lose your balance. Heavy snow can also snap power lines, and OSHA recommends that workers who come upon downed power lines should assume they’re live.
Even a task as simple as shoveling a walkway can put enough strain on the body to cause a heart attack. And while a snow blower can make the job easier, clearing clogged augers has resulted in lacerated hands and fingers. It’s important to turn off the snow blower or make sure it’s in neutral before clearing out the chute.
Winter Precautions Employers Need to Take
It’s important for employers to do their job to not only avoid unnecessary injuries during the winter months, but costly workers’ compensation claims as well. These include:
- Clearing driveways, walkways and other ground surfaces near the business
- Establishing and marking work zones for outdoor workers
- Providing reflective clothing for workers
- Keeping ladders in safe working order
- Requiring use of fall protection equipment, especially when working on roofs
- Limiting the amount of outdoor working time and offer frequent breaks during periods of extreme cold
Hopefully, employees and employers alike who take extra care will help to reduce the amount of work related injuries sustained during the winter months and year round.
The Chicago and Berwyn Premises Liability Lawyers at Grazian and Volpe have written extensively of the complexities involved where a workers’ compensation and third party personal injury liability claim co-exist (myaccidentlaw.com/blog). This recent lawsuit highlights these issues in a tragically.
A fourteen year old girl and her co-worker were electrocuted in July while removing tassels from corn at an Illinois farm near Tampico. They were employed by Monsanto. Both teenagers were killed when they came into contact with a field irrigator while working. An investigation into the incident indicates that there was an appreciated and understood electrical problem with the connection to the irrigation system but that nothing had been done to correct the hazard. At the time of the deaths, about 72 people were detasseling corn and two other teenagers were seriously injured and six other workers were treated for non-life threatening injuries.
The lawsuit alleges that Monsanto knew about problems with the field’s irrigation equipment and failed to repair the issues. The owner of the property had given instructions that the electricity should be shut off but it was not done. OSHA is currently investigating the incident and Monsanto has denied the decedent’s claims. ConEd has also been named as defendant. Apparently, the electric meter had been struck and damaged by lightening and the suit alleges negligence in failure to repair.
We will be monitoring this case to see how it impacts issues of workers’ injury law, personal injury law and premises liability law. The issues presented by the combination of these causes of action will be instructional in filing similiar suits on behalf of our clients. The Chicago and South Chicago Accident Lawyers at Grazian and Volpe wish the best of luck and our sympathies to the victims and their families.