ASA NEWSLETTER: Q2 2020

Author: Jordan Lejcar

Can you believe it has only been a few months since our last chat? It feels like years have passed and the whole world has changed! In just one quarter, we have witnessed several rounds of “new normals” with how we work and socialize and updated procedures everywhere from the IWCC to the local grocery store. As the ASA Team continues to grow and adapt, our mission has remained the same: coming together to help our clients navigate the current issues.

With that being said, ASA’s Second Quarterly Intention is:

“It is not the ship so much as skillful sailing that assures the prosperous voyage.”

--George William Curtis

Remember, an intention is a goal or vision that guides your activities, thoughts, attitudes, and choices. What rings true in the words above, and what all of us at ASA have been striving to remember, is that no matter the storm (Covid-19), the choppy waters (remote working), the size of the ship (ever-changing procedures), or the pirates we encounter along the way (personal difficulties), we will continue to provide excellent service and guidance to our clients. We have assured a prosperous voyage for ourselves and our clients by not only honing the skills we have, but also learning new skills required for these new times. Yes, the ship is important. However, collaboration, communication, continuing education and commitment to our clients were the key factors in this ship’s smooth sail through the storm thus far.

What has made your voyage successful? We invite you all to reflect on the last few months, the unique challenges that you have faced, and how you have overcome them. Then, take a second moment and to set an intention for this coming quarter. I think we can all agree that success in the next quarter will require resilience, endurance, and a few months’ supply of hand sanitizer.

Authors: Talin Maghakian and Jordan Lejcar

With restrictions at an all-time high in both California and Illinois, ASA Law Group continued in its quest to be #MoreThanLawyers virtually and on a more personal level. During Q2, California led the way with the 2020 Walk for Kids benefiting the programs of the Ronald McDonald House Charities of Southern California. This was scheduled to be held on Sunday, April 24, 2020 as a live event. However, due to the Covid-19 stay-at-home order and distancing measures, this was successfully completed as a virtual walk! Donning our festive purple t-shirts, we here in California participated in a socially distanced walk which were documented with fun selfies. We ventured out in the name of this most benevolent organization supporting families with children who are hospitalized. Our photographs from the Virtual Walk can be viewed on our website!

We also continued our firm donations to:

In Illinois, our individual families made the following donations:

Despite these difficult times, we invite you to join us in our mission to serve our communities in any way you can! #MoreThanLawyers #PeopleFirst! 

Author: Jennifer Maxwell

For those of us living in Illinois, Q2 was a time of stabilization of the “new normal,” which included increased availability of Covid-19 testing, sheltering in place, social distancing, continued handwashing, and mandatory mask wearing. As a result of these efforts, Illinois was successful in not only “flattening the curve” to avoid overwhelming the healthcare system, but also in decreasing the Covid-19 positivity rate, such that a phased re-opening of the state began in June. 

However, in the world of Illinois Workers’ Compensation, Q2 was anything but a time of stabilization. During the entirety of Q2, the IWCC operated under emergency arbitration procedures, which changed monthly as adjustments were made and technology was implemented. In addition to procedural changes, there were changes to the law.

On April 16, the IWCC set forth an Emergency Rule, creating a rebuttable presumption for Covid-19 claims. In response, the IMA and IRMA filed a temporary restraining order against the IWCC. On April 24, a Sangamon County circuit judge issued a temporary restraining order enjoining the IWCC from implementing the Emergency Rule. In response, on April 27, the IWCC repealed the Emergency Rule. During that meeting in which the Emergency Rule was repealed, there were statements that organized labor and the petitioner’s bar would seek other avenues to address a Covid-19 rebuttable presumption.

In May, the Illinois legislature drafted and passed a bill amending the Workers’ Occupational Diseases Act to include a new subsection, 1(g), creating a rebuttable presumption for Covid-19 exposure and contraction in the workplace. On June 8, 2020, Governor Pritzker signed the bill into law. 

What Do Employers Need to Know about the New Law?

How do Employers Overcome the Presumption?

What Actions should Employers Take?

ASA continues to lead the way in addressing the challenges created by Covid-19 for our clients and the industry. To assist with the evaluation of Covid-19 cases under the new law, ASA Law Group has created a step-by-step analysis Cheat Sheet. If you don’t have one yet, please contact ASA Law Group owner and president, Shuaib Ahmed, for a copy at email:  [email protected] .  In addition, you can find links to our ASA Tuesday Tele-Briefs and Webinars at www.asalawgroup.net/news .

Author: Talin Maghakian

 

In May, the Governor of California, Gavin Newsom, signed an Executive Order instituting a rebuttable presumption that workers in the state who test positive for Covid-19 contracted it at work as it relates to workers’ compensation claims. This can be seen as sweeping change that, at its core, flies in the face of the way in which most non-criminal legal actions are traditionally litigated. The burden of demonstrating causation is no longer on the party (in this case, the Applicant) who brings the action. While employers and defense attorneys alike are undoubtedly lamenting this seemingly bold development, there are a number of critical factors to consider as Covid-19 claims arise, outlined herein.  

 

Although it presents a challenge, this presumption is rebuttable .  

 

This Executive Order was likely enacted with the motive of streamlining the workers’ compensation procedure in order to ensure that workers who have fallen ill as a result of this pandemic are able to access benefits in a more expeditious manner. It is, however, also important not to lose sight of the fact that this presumption is rebuttable, meaning the employer can present evidence that the worker’s exposure to the coronavirus did not arise out of or occur in the course of employment. All cases are different, however, successfully rebutting this presumption will be an uphill battle at best. In addition, it is unclear as to what type of evidence will overcome the presumption. Even with such strong evidence, such as a spouse working in the medical field who has also tested positive for Covid-19, we simply do not know whether that will pass muster if such a case is ever presented for determination before a judge. Any evidence that employers obtain for the purpose of defeating the presumption can be obtained by way of depositions, witness statements, employer level investigations, medical discovery, etc.

 

A clear showing of injury is required. 

 

In order for the presumption to be applicable, the worker must receive a positive test or physician diagnosis within 14 days of the last day working outside of the home. Although it may seem like a no-brainer, the physician must be licensed by the California Medical Board. If the worker is relying on a physician diagnosis as the basis of their claim, a subsequent positive test within 30 days of diagnosis is still required. Either way you cut it; a positive test is on the checklist.  

 

Determination of Compensability is on the Fast Track 

 

The Executive Order establishes a 30-day period (as opposed to 90 days for general workers’ compensation claims) for which the employer must determine whether to admit or deny the claim. Since it is not always easy to complete a comprehensive discovery process within 30 days, employers are allowed to change their determination based on any new evidence that may come up. This is a very important timeframe to be mindful of as the claim will be deemed compensable if the 30-day period expires without the issuance of a compensability decision.  

 

Entitlement to Benefits Are Modified 

 

Workers whose exposure to Covid-19 arose out of and occurred in the course of employment are eligible for the same workers’ compensation benefits including medical treatment, indemnity benefits, and death benefits. However, temporary disability indemnity is only available once the worker has exhausted all their available sick leave benefits, both state and federal. This would require careful consideration and inventory of all the sick leave benefits the workers may be entitled to, depending on their employer or jurisdiction. Considering the number of programs that have been enacted on a state and nationwide level to assist employees with sick leave, it may be a long while until the employee is eligible to receive temporary disability benefits from their employer or employer’s carrier. In addition, an employee must be certified temporarily disabled by their physician every 15 days for the first 45 days after diagnosis or positive test. This may be a result of the ephemeral and unpredictable nature of some of the disabling symptoms of Covid-19.  

 

The Scope of Covered Injuries Remains to Be Seen.  

 

We know that no two claims are alike, and this will likely be the case with Covid-19 claims for workers’ compensation benefits. A physician diagnosis and/or positive test may just be the beginning of a slippery unfolding of different injuries that may or may not have been a consequence of Covid-19 exposure. For example, did the claim involve one who endured classic flu-like symptoms before recovering completely? Does the claim involve exposure to Covid-19 that resulted in long-term respiratory damage? Is there any psychological injury sustained as a result of Covid-19? These are important considerations when determining compensability or simply navigating the discovery process.  

 

Ending Thoughts 

 

As of now, we can only surmise that Covid-19 workers’ compensation claims, bolstered by Governor Newsom’s Executive Order, will present challenges in litigation and many effects on business, namely rising costs. As Covid-19 claims become a more common part of the California workers’ compensation setting, we anticipate many challenges will arise to this seemingly “new world order.” As defense attorneys, we resolve to keep a close eye and an ear to the ground on these monumental developments. At the risk of sounding cliché, education really is our best weapon with respect to this changing litigation landscape. Accordingly, we are always happy to answer questions or even just brainstorm strategies and decisions. An attorney will always be at your disposal to do so, therefore please do not hesitate to contact any of our attorneys here for any and all your workers’ compensation inquiries. 

 

Authors: Alexa Venditti & Adan Ramirez

Below you’ll find some of the most recent law updates in workers’ compensation! Included are some case law updates presented at the latest virtual Illinois WCLA Brown Bag Lunch from this past June, 2020. 

  

American Kitchen Delights v. IWCC  is a recent Appellate Court case that dealt with the question of an uninsured Respondent employee. The Appellate Court in this case addressed a prior Commission decision pertaining to Section 4(d) of the Illinois Workers’ Compensation Act. Section 4(d) of the Act allows an employee to pursue an action again his or her employer in State Circuit Court without protection of the Act if it is found that an employer knowingly fails to provide adequate insurance to the employee. In this particular case, the record showed the proprietor was working with his broker to replace coverage and was uncertain as to when his insurance policy had lapsed. The injury occurred within a couple months of his policy lapsing and end of coverage. The Commission found against the employer, who then appealed this decision. At the Appellate Court level, the employer succeeded, and the Commission decision was reversed. The Court emphasized the above facts regarding the policy lapse, noting that a “knowing” standard requires more proof, and stated that there was no written evidence of first notice of the policy cancelation or anything similar. The Appellate Court reversed, which sent the case back to the Commission, where it is pending a decision. This Appellate Court decision is especially relevant to an employer who borrows employees or that have indemnity agreements in place for workers’ compensation insurance coverage. 

Robert Eppenstein v. All Sealants dealt with the evidentiary rules for admissibility of documents at the arbitration level. The All Sealants court addressed an Arbitrator’s decision admitting the Petitioner's Fee Schedule Analysis over Respondent's objections to the admission of the document. Per the Rules Governing Practice Before the Illinois Workers' Compensation Commission, §9030.70, the Illinois Rules of Evidence apply to all proceedings before the Commission, either upon Arbitration or Review. Rule 802 of the Illinois Rules of Evidence provides that hearsay is not admissible unless an exception applies, otherwise hearsay is inadmissible. Further, If a document is admissible pursuant to an exception to the hearsay rule, the proponent must still lay an adequate foundation for its admission into evidence. During arbitration, Respondent objected to the admission of Petitioner's Fee Schedule Analysis on the basis of hearsay. Petitioner did not cite an exception to the hearsay rule allowing for its admissibility nor did Petitioner present a witness to lay a foundation for the document. The Arbitrator ultimately admitted the Petitioner's Fee Schedule Analysis into evidence and awarded the medical bills as provided by Petitioner's Fee Schedule Analysis. The Commission found that Petitioner's Fee Schedule Analysis should not have been admitted into evidence per both, the hearsay rule and lack of foundation. The Petitioner did not cite any exception to the hearsay rule which would allow for its admission. In addition, there was no proper foundation as the preparer of the Fee Schedule Analysis from Petitioner's attorney's office was not present at the arbitration hearing to testify regarding the document. Respondent had no opportunity to cross-examine the preparer on their qualifications to prepare such an analysis, to review the method of calculation or to verify the accuracy of the document.

Hannah Larson v. Quad City Skydiving Center reversed an arbitration decision that found an employee-employer relationship. The Petitioner was a pilot for Respondent’s skydiving training program. Petitioner met with Respondent and explained that the hours she flew for Respondent will be logged and go towards the requirements for her airline transit pilot certificate. That certificate was necessary to obtain a job as a commercial pilot. Petitioner agreed she would fly for Respondent for approximately 5-8 hours on Sundays. Petitioner was not paid for the hours she flew for Respondent, Respondent provided the plane and paid for the gas. Respondent would text Petitioner regarding her hours each week and would tell her how many jumps remained during the day. Respondent directed the routes to fly, the general areas to avoid, at what altitude to fly, and where the skydivers should jump. The Commission found that Petitioner did not meet her burden of proving an employer/employee relationship existed on the date of injury. The Commission concluded that "there can be no employer/employee relationship, and therefore, no liability under the Act absent a contract for hire, either express or implied.“ In support for its decision it pointed to the Petitioner’s admissions that she had absolutely no expectation of receiving payment for the hours she flew for Respondent. The Commission also found it to be clear that Petitioner did not expect this volunteer opportunity would lead to future gainful employment by Respondent. Instead, Petitioner chose the volunteer opportunity because it presented a chance to gain the additional flight experience and training that she needed to obtain her airline transit certificate. Based on the totality of the evidence and relevant legal precedent, the Commission found there was no consideration, payment, or other compensation in exchange for Petitioner volunteering to fly Respondent's plane.

Analysis of Rebuttable Presumption Case Law

As noted in the Covid-19 article above, Illinois’s rebuttable presumptions was expanded. This rebuttable presumption can be overcome, or rebutted, by evidence that (1) the employee was working from home or was on leave, (2) the employer was engaging in and applying or enforcing safety guidelines, or (3) the employee was exposed by an alternate source. In light of the new law, we thought it would be helpful to provide other workers’ compensation cases involving the issue of rebuttal presumption.

In City of Peoria v. IWCC (2016) , the appellate court found that the burden to overcome a rebuttable presumption was “some evidence.” The court noted that the IWCC clearly found the City had rebutted the presumption by “some evidence” when it classified the evidence presented as “extremely persuasive expert testimony.”

Johnston v. IWCC : In 2017, the Johnston court clarified the amount of evidence that is required from an adversary to meet a rebuttable presumption. Generally, the party contesting the rebuttable presumption must come forward with “sufficient evidence” to support a finding of the nonexistence of the presumed fact. However, in some cases where compelling policy considerations are at issue, the party attacking a presumption has a greater burden of production than merely producing evidence sufficient to support a reasonable trier of fact’s finding as to the nonexistence of the presumed fact. In those cases, the challenging party must overcome a “strong presumption by clear and convincing evidence.” If the statutory provision in question is silent as to the amount of evidence required to rebut the presumption, the courts must determine as a matter of statutory construction whether the rebuttable presumption provided for falls into the strong or ordinary category requiring either clear and convincing evidence or merely some evidence, respectively, to the contrary. However, where the statutory language is clear, it will be given effect without resort to other aids for construction. 

Simpson v. IWCC (2017) discussed the amount of evidence required to end the effect of a presumption. The Appellate Court in this case notes that the Illinois Workers’ Compensation Commission, “in determining the amount of evidence required to terminate the effect of a presumption, determined that ‘strong’ evidence was required, a higher standard than ‘some evidence,’ was required in Johnston.” However, in its opinion, the Appellate Court never uses the term “strong” again. Rather, it states that, “the Commission found that the employer introduces some evidence to rebut the presumption through the testimony of an expert witness.” The Appellate Court went on to agree that expert’s testimony that the claimant had three major risk factors for heart disease, and that those factors caused the heard disease that resulted in a heart attack, “constitutes sufficient evidence of another cause of the claimant’s heart disease, and that the presumption thereby ceased to operate per our analysis in Johnston.” In the end, “the Commission was free to determine the factual question of whether the occupational exposure was a cause of the claimant’s condition based on the evidence before it without the benefit to the claimant of the presumption.” Practically speaking, this case seems to stand for the idea that the Commission is now holding employers to a strong evidence standard rather than a “some evidence” standard in rebuttable presumption cases. However, because proving strong evidence will in turn be a showing of some evidence, this was not held as an error by the Appellate Court and the standard of proving some evidence is still the same.  

Ekkert v. IWCC (2018) examined the rebuttable presumption question and the standard required by an employer to rebut same. The Appellate Court stated that, “it is sufficient to rebut the presumption if “the employer introduces some evidence of another potential cause of the claimant's condition.” Once the presumption is rebutted, the Commission has the freedom to resolve any factual dispute as it would in an ordinary workers’ compensation case, without reference to the presumption. This case also stands for the proposition that any questions on appeal concerning the scope and application of the presumption are subject to de novo review as a question of law, not evidence. Second, if it is determined that the presumption has been properly rebutted, then the manifest weight standard is used when reviewing the Commission's ultimate decisions concerning accident and causation, assessing whether an opposite conclusion to the Commission’s is clearly apparent based on the facts.

Hedman v. City of Elmhurst  is a recent arbitration decision that dealt with the rebuttable presumption as it pertained to a firefighter. After the firefighter’s diagnosis of hypertrophic cardiomyopathy, his treating doctor recommended that he no longer continue his employment as a firefighter. The reasoning behind this advice was that there was a risk of death if the employee were to experience great amounts of physical stress. At trial, the firefighter employee argued that the hypertrophic cardiomyopathy diagnosis was related to his employment as a firefighter. He claimed that the rebuttable presumption was applicable to his diagnosis and in this case. In defending the claim, the City of Elmhurst offered a physician opinion that the firefighter employee’s diagnosis was not causally related to his employment and as well as the argument that the employee did not suffer a work accident because no injury resulted from his diagnosis while working as a firefighter. Ultimately at arbitration, the presumption was rebutted by the City of Elmhurst and the firefighter employee’s diagnosis was deemed not causally related to his employment. 



As always, if you have any questions regarding any of these recent decisions, please do not hesitate to reach out to our attorneys for more information.

Author: Alexa Venditti

 

ASA’s continuing efforts towards professional and personal excellence was highlighted by the Illinois Chamber of Commerce in a “Member Spotlight” article this quarter! Not only did the article highlight ASA’s founding philosophy and holistic approach to the legal practice, but it also showed how that mindset has continued throughout the COVID-19 pandemic. Not only has ASA taken this time of uncertainty as an opportunity to be a source of clarity and information for its clients, but it has also used these trying times to expand community involvement.

We are thankful to the Illinois Chamber of Commerce for this great feature and look forward to further building our relationship in the future!

This quarter, ASA Law Group’s website was also named as one of The Best Law Firm Websites by CLIO! At ASA, our goal is keep our clients and partners up to date on important workers’ compensation legal news and trends through our site, social media channels, and telebriefs. We are thankful for the recognition as we continue to find ways to best cater the needs of our clients through technology.

Author: Jennifer Maxwell

 

ASA Law Group is excited to introduce its newest team member! Arpie joined our growing California office in May. She received her Juris Doctor from Southwestern Law School. Prior to law school, Arpie attended University of California Irvine where she double majored in Political Science and Criminology Law and Society. Arpie comes to ASA as an experienced worker’s compensation defense attorney with a strong litigation background. She believes communication is the key to a successful partnership with claim and insured clients. Arpie is always up for a challenge and her approach to cases always includes keeping clients well informed while fiercely litigating their claims to achieve the best resolution. 

When Arpie isn’t in the courtroom advocating for her clients, she enjoys spending time with her family. She also volunteers for the Armenian National Committee of America helping to advance Armenian issues that are near and dear to her heart. Because of Arpie’s experience and enthusiasm, she has hit the ground running at ASA and is achieving excellent results for our clients. ASA is excited to have Arpie on the team and we hope you’ll join us in welcoming her.

Author: Jordan Ann Lejcar

Are you stuck in a rut? Does your brain feel sluggish? Do you find yourself easily distracted? Are you unable to recall details from phone conversations just after you hang up? Are you unable to recall details of a claim file moments after closing it? Do you find yourself relying on your smartphone or tablet for, well, everything (i.e. birthdays, phone numbers, to do lists, fun facts, etc.)? Then ASA has just the book for you.

I know, I know, reading books is a time-consuming luxury we don’t have at the moment. But, hear me out. Jim Kwik’s Limitless is a literal owner’s manual for upgrading the brain. This read could not have been a more relevant choice for the times. If you answered any of the above questions affirmatively, rest assured that the return on investment is high with this one.

Kwik uses the term “limitless” to describe the act of “progressing beyond what you currently believe is possible.” It’s the ability to be more productive, to achieve more, to transform—simply by exercising your brain. How, you ask? Through an active process of “unlimiting,” or removing the limitations each one of us have with regards to the “Three M’s”:

The three M’s are separate and distinct. One is not more important than the other. But, each can intersect with another to create the “Three I’s”:

In essence, according to Kwik, you will achieve a limitless state when your “Three M’s” are defined and strengthened, and your “Three I’s” are intersecting.

The process of being Limitless is similar to a work-out plan for the brain. When a person begins a new fitness plan, it is usually to change or correct an issue. But, it’s challenging to change or correct issues that you just can’t see, right? In its quest to aid the reader in “learning how to learn,” Limitless also breaks down all the barriers, or “villains,” that challenge our ability to think, focus, learn, and grow. Spoiler alert – they are all digital.

Once these barriers are outlined, the reader is ready to learn how to overcome their cumulative effects on the “Three M’s,” allow the Three I’s” to intersect, and start the journey of becoming “Limitless.”

Limitless is a journey, a process, a lifestyle. The mental work-outs Kwik sets forth are more akin to training for a marathon than a sprint, which is pretty fitting for the time. I think many of us would agree we could all could use a good work-out to sharpen our focus and enhance our mental endurance now more than ever!

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