COVID-19 and Illinois Workers’ Compensation Act and Illinois Occupational Disease Act

INTERVIEW WITH LEGAL EXPERT: RICHARD K. JOHNSON

Richard K. Johnson, Managing Partner of Katz Friedman started with the firm in 1983 representing many injured men and women in Chicago and what may seem like every town or county throughout the State of Illinois. He is frequently sought out for his superior knowledge of the Illinois Workers’ Compensation Act and Illinois Occupational Disease Act by workers, unions and legal organizations. Richard has authored articles on workers’ compensation topics published by the Illinois Institute of Continuing Legal Education, The Illinois Trial Lawyers Association and The Tort and Insurance Practice Section of the American Bar Association. Richard continues to author the Occupational Disease Act Chapter for the Illinois Trial Lawyers Association. He has been selected by his peers as an Illinois Super Lawyer in the field of Workers’ Compensation every year since 2008. He has also been selected as one of the Best Lawyers in America for the past several years and has been inducted into The College of Workers Compensation Lawyers and currently serves on the Board of Directors.

In 2015, Richard Johnson was appointed to the Illinois Workers’ Compensation Commission Rules Committee as one of only eight Illinois attorneys so appointed to represent injured workers. This Committee was responsible for formulating new rules for handling claims before the Illinois Workers’ Compensation Commission.

In 2016, he was named by Best Lawyers as the “Lawyer of The Year in Workers’ Compensation Law-Claimant”. He is also celebrating his 25thyear of being “AV” rated by his peers through Martindale-Hubbell, he is considered to have the highest level of ethics and competency in this field.

Moderator: If a worker contracts COVID-19 while working, from a legal perspective, is that considered an illness or injury?

Richard K. Johnson: Contracting Covid 19 in the workplace is considered an illness and would be covered under the Illinois Occupational Diseases Act.

Moderator: For a workplace exposure what is the difference between pursuing a claim under the Illinois Workers’ Compensation Act versus the Illinois Occupational Disease Act?

Richard K. Johnson: There are a few differences which are important to note. The calculation of the average weekly wage always includes overtime earnings in computing benefits for lost time and compensation for permanent partial disability in an occupational disease act claim. There is no fixed time limit for giving notice of the contraction of the disease as there is in a workers’ compensation case. More importantly, there exist presumptions in the Occupational Diseases Act, not generally found in Workers’ Compensation cases. Occupational Disease Act claims usually require more evidence to prove the case than is required under the Workers’ Compensation Act.

Moderator: Is an Illinois Occupational Disease Act case filed and adjudicated at the Illinois Workers’ Compensation Commission?

Richard K. Johnson: Yes, the Illinois Workers’ Compensation Commission handles all claims under the Occupational Diseases Act in the very same fashion as the Workers’ Compensation Act.

Moderator: Have you represented workers under the Illinois Occupational Disease Act? Please explain.

Richard K. Johnson: Over my career, I have been privileged to represent more than one thousand individuals with Occupational Disease Act claims. Representative claims include, hearing loss caused by noise exposure, silicosis, beryllium exposure, reactive airways disease caused by chemical exposures, dermatitis claims (skin conditions) caused by chemical exposure, leukemia caused by organic solvent/gasoline exposure and now those infected with the novel corona virus known as Covid 19.

Moderator: For several years you have authored the Occupational Disease Act Chapter for the Illinois Trial Lawyers Association Handbook, based on your research and experience do you agree that COVID-19 illnesses should be covered under the Illinois Occupational Disease Act? Please explain.

Richard K. Johnson: There is no question in my mind that working shoulder to shoulder in a factory, working in a health care facility, school or grocery store puts an individual at greater risk than the general public. There is an increased viral load in areas that are enclosed and where the public congregates. There are many such examples where this increased viral load is present and presents a danger to the worker.

Moderator: After the COVID-19 Pandemic spiked in March of 2020, what action did you take on behalf of Illinois workers?

Richard K. Johnson: We are fortunate to represent unions that are very active in protecting workers and promoting safety in the workplace. I worked with the Illinois Nurses’ Association director, Alice Johnson, to promote the legislation providing a “presumption” of compensability for front line workers as defined by Governor Pritzker’s original Order pertaining to Covid 19. I did this work on a pro bono basis as I believe strongly in protecting the health and safety of our health professionals.

Moderator: Thereafter, Governor Pritzker signed into law Public Act 101-0633 for the benefit of frontline workers who contracted COVID-19 in the course of their employment. Please explain this provision.

Richard K. Johnson: This statutory amendment to the Occupational Diseases Act provides a rebuttable presumption that, if the worker meets the statutory requirements, it is presumed the Covid 19 illness was contracted in the workplace. A rebuttable presumption does not guarantee compensability, but it certainly provides an easier level of proof for the stricken worker as it shifts the burden of proof to the employer to prove that the disease was contracted outside the workplace.

Moderator: Under this existing provision for what period of time are workers covered for COVID-19 conditions?

Richard K. Johnson: Under the Amendment, the presumption applies to any first responder or front-line worker receiving a Covid 19 diagnosis between March 9, 2020 and December 31, 2020.

Moderator: What benefits are available for workers suffering from COVID-19 illnesses?

Richard K. Johnson: Workers’ will have 100% of all reasonable and necessary medical expenses incurred to cure or relieve the effects of the infection paid by the employer. In addition, the stricken worker will receive 66 2/3rds of their average weekly wage for the entire time they are temporarily disabled from working. The first two weeks missed should be full pay under the CARES Act. Finally, the stricken worker can receive a settlement for permanent partial disability. We are just beginning to see evidence of permanent injury caused by Covid 19. This is a very fluid area of medical science at this point. Of course, if the exposure caused the death of the employee, the widow/widower and dependents would receive up to 25 years of weekly benefits in addition to the funeral benefit.

Moderator: Have there been other provisions in the Act providing a rebuttal presumption for certain illnesses in the Illinois Workers’ Compensation Act/Occupational Disease Act?

Richard K. Johnson: Yes, there are a number of different presumptions including presumptions for coal workers pneumoconiosis, radiation exposure, and firefighters/EMT’s who experience certain diseases likely caused by smoke/fire and stress of their jobs.

Moderator: Has your firm successfully litigated cases utilizing the rebuttal presumption on behalf of disabled firefighters?

Richard K. Johnson: Yes, we have successfully represented firefighters who have become disabled and used the rebuttable presumption to do so. We actually have a very active practice in protecting firefighters and EMT’s in the cities and towns outside of Chicago. The Occupational Diseases Act does not apply to Chicago firefighters.

Moderator: Does Katz Friedmanpresently have cases pending on behalf of workers disabled from COVID-19?

Richard K. Johnson: We are presently representing a number of health care workers, factory workers and other individuals in Covid 19 litigation. Unfortunately, this includes families of a worker who died as a result of the disease.

Moderator: What recommendations do you have for workers exposed to COVID-19 on the job to protect their benefits?

Richard K. Johnson: I highly recommend that any worker exposed to Covid 19 while on the job, call us for a free consultation. Every situation is different and may affect the outcome. I can guarantee you that the insurance company will be looking out for their shareholder, we will look out for you.

Moderator: Thank you, Richard.