Withdrawal of Emergency Amendment to IWCC Rules
As we previously reported, the Commission issued an Emergency Amendment to Part 9030.70 of the Rules of the Illinois Workers’ Compensation Commission on April 16, 2020 (following an initial attempt on April 13). The stated purpose of this Emergency Amendment was ostensibly to protect “essential employees” who could be exposed to the COVID-19 virus at work, by providing a rebuttable presumption that those workers who are diagnosed with the disease contracted the virus while working.
On April 22, 2020, the Illinois Manufacturers’ Association (IMA) and Illinois Retail Merchants Association (IRMA) filed a lawsuit in Sangamon County Circuit Court, challenging the authority of the Commission to enact the Emergency Amendment to the Rules. On April 24, 2020, Sangamon County Circuit Court Judge John M. Madonia issued a temporary restraining order blocking the rule.
On April 27, 2020, the Commission held an Emergency Board Meeting to consider a resolution to withdraw the Emergency Amendment entered on April 16. The meeting was held telephonically and was open to the public. The Commission unanimously resolved to submit an “Emergency Repealer” of the April 16 Emergency Amendment to JCAR (Joint Committee on Administrative Rules), thereby withdrawing the previously promulgated Emergency Amendment. According to Chairman Michael Brennan, the Commission wished to avoid incurring litigation costs in defending the lawsuit filed by the IMA and IRMA. He also stated that by withdrawing the previously-enacted Emergency Amendment, the Rules essentially revert back to the status quo, meaning Part 9030.70 of the Rules no longer contains the provision concerning a rebuttable provision for COVID-19 claims.
The Commission also resolved to form a COVID-19 Action Committee, to be co-chaired by Commissioner Simpson and Commissioner McCarthy. The purpose of this committee is “to assist in the examination of the problems created by the Covid-19 Pandemic and possible actions that the Commission may take to solve these problems. An announcement regarding the other members of the Covid-19 Action Committee, meeting and hearing dates will be made shortly.”
It should be noted the withdrawal of the Emergency Amendment by the Commission will have no effect on Section 6(f) of the Act. Section 6(f) of the Act already provides a rebuttable presumption for firefighters, emergency medical technicians and paramedics for any condition or “impairment of health” which results directly or indirectly “from any bloodborne pathogen, lung or respiratory disease or condition, heart or vascular disease or condition, hypertension, tuberculosis, or cancer…or hernia or hearing loss.” Section 6(f) specifically states, however, “this presumption shall not apply to any employee who has been employed as a firefighter, EMT, or paramedic for less than 5 years at the time he or she files an Application for Adjustment of Claim….”
Special Arbitration Procedures – May 1, 2020
Effective May 1, 2020, the Commission will be operating pursuant to new emergency arbitration procedures. In addition to continuing the previously-enacted emergency hearing procedures for Section 19(b) and Section 19(b-1) Petitions, all status calls previously scheduled to take place in May will proceed via telephone. The highlights include:
• Cases will only be set by Agreement.
• The party that requests the date must notify their opponent of the scheduled trial date, in writing.
• No Emergency 19b’s or 19-b1’s will be set from this Call.
• Emergency matters will still be heard by the Emergency Arbitrators, during the month of May.
• Only cases that are ready to be tried should be set.
• Parties must notify the Arbitrator of the status of the case to determine whether or not it may proceed. For downstate cases, notify both the setting and June hearing Arbitrators.
• Any matter that does not receive a trial date will automatically be returned to the call, whether or not it is above the line.
• For downstate venues, the cases set in each venue will stay in each venue, i.e., Arbitrator Lee will set cases in May, for June, but they will be heard in June by Arbitrator O’Brien. When they are returned to the call, they will revert to Arbitrator Lee.
Click for a link to the complete copy of the MAY 2020 SPECIAL CIRCUMSTANCE ARBITRATION PROCEDURES. and the MAY STATUS CALL SCHEDULE AND ASSIGNMENTS.
Medical Fee Schedule Update – April 24, 2020
On April 24, 2020, the Commission announced a revision to the medical fee schedule (from the IWCC website):
“Based upon the continuing National Emergency and Worldwide Pandemic created by the COVID-19 virus, the IWCC updated the medical fee schedule values and temporarily adopted CPT Codes eligible for the Telehealth Modifier -95.”
The update essentially takes into account the need to introduce new CPT and HCPC codes for testing and treatment of COVID-19 patients, as well as the allowed use of modifier 95 (Synchronous Telemedicine Service Rendered Via a Real-Time Interactive Audio and Video Telecommunications System) for existing codes. This change reflects not only the new tests and treatment for this disease, but the fact that office visits and other medical services must often be rendered to a patient remotely, via telephone or video call.
Click for a link to the MEDICAL FEE SCHEDULE UPDATE.
Our Advice
As with every claim, we recommend a full investigation when presented with a COVID-19 claim, including a thorough investigation as to whether the claimant was in fact at risk of exposure through actual contact with COVID-19 patients, or whether the claimant was a “back office” employee who likely had no contact with such patients, or in fact has been working from home. In addition, is there evidence of exposure outside the workplace?
For non-medical industries, such as grocery stores, transportation, etc., measures to reduce potential exposure with the general public have likely already been put into place, and it will be important to document such measures to defend any COVID-19 claim. And as with all claims, statements from the claimant and co-workers should be taken as soon as possible.
Finally, every claim needs to be evaluated on a case-by-case basis, taking into account all the relevant facts and circumstances. We certainly do not advocate a knee-jerk denial of benefits to those first responders and front-line employees, so long as the investigation shows by a preponderance of the evidence the exposure is more likely than not a work-related condition.
But, neither do we advocate a blanket acceptance of all claims filed by those who work in “essential industries” without a thorough investigation of the claim. An employer still has the right to present evidence in defense of any claim asserted by an employee.
As always, we are here for you to render thoughtful and accurate legal advice on any claim presented to you by an employee.
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With regard to the special arbitration procedures, we have already set up a schedule in our office to attend each and every status call via telephone. We continue to remain in communication with clients and opposing counsel concerning ongoing claims and will notify you of the setting of any matter for trial during the June trial cycle, or any emergency matter which is set in May.
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With regard to the Medical Fee Schedule Update, it is important to take these changes into consideration when processing medical bills for a COVID-19 patient, as well as for any claimants who attend office visits via telephone or video call. We are hoping the expansion of the use of such technology for medical services allows claimants to receive and move forward with necessary medical treatment, both for their benefit and in order to move claims toward resolution.
We will provide further updates as such become available, and of course welcome any questions you may have on these issues.
Stay safe.
Ganan & Shapiro, P.C.
