Workers' Compensation FLASHPOINTS September 2020

Joseph P. Basile | E-mail Joseph Basile

This month presents a summary of a Rule 23 order involving a petitioner who sustained two falls while taking walks during employer-approved breaks that occurred outside of the building where she worked. The Workers’ Occupational Diseases Act (OD Act), 820 ILCS 310/1, et seq., was amended to address the COVID-19 issue, and a synopsis of the amendments is provided outlining those employees who are entitled to the rebuttable presumption, how the presumption can be rebutted, and other details.

Court Upholds Commission’s Findings That Petitioner’s Two Falls Did Not Arise Out of and In Course of Employment

The Workers’ Compensation Division of the Illinois Appellate Court held the Commission’s finding was not against the manifest weight of the evidence in Suits v. Illinois Workers’ Compensation Commission, 2020 IL App (3d) 190491WC-U. The petitioner was employed with Marquette Group, a marketing company. Her duties involved searches for clients and digital marketing. She worked full time in a rented office building on the seventh floor and was allowed a 30-minute lunch break and two 15-minute breaks that she could take at her discretion in the morning and afternoon. She would take walks during her breaks to relieve job stress. Other employees also took such breaks, and management was aware of this practice. The employer encouraged such walks as part of a wellness program and provided pedometers so employees could track the number of steps taken. The employee manual did not restrict employees from leaving the premises during breaks.

The petitioner’s first fall occurred June 6, 2012, when she tripped on a raised piece of concrete three blocks from the building. The second occurred November 14, 2012, when she twisted her ankle and fell less than a block from the building. Both took place while she was on a break.

The arbitrator determined the petitioner’s accidents were the result of a neutral risk, that to which the general public was also exposed. The frequency with which she was exposed to them was determined by her. The arbitrator held the accidents did not arise out of her employment. The arbitrator relied on Eagle Discount Supermarket v. Industrial Commission, 82 Ill.2d 331, 412 N.E.2d 492, 45 Ill.Dec. 141 (1980), to hold that, because the accidents occurred off the respondent’s premises, they did not occur in the course of her employment. The arbitrator also held the personal comfort doctrine did not apply.

The Commission affirmed and adopted the decision. One Commissioner specially concurred, commenting that an employee travelling to or from work, in general, may recover if the accident occurred in a parking lot controlled by the employer or if the employee is in a place required by the employer and exposed to a risk to a greater degree than the general public. Neither circumstance was present here. The Commissioner also commented that the claimant did not establish that her accidents arose out of the employment. The claimant did not know what caused her second fall, and there was no evidence that the raised concrete involved in the first fall was in any way defective or unusual. The circuit court confirmed the Commission.

On appeal, the petitioner argued the Commission’s findings were against the manifest weight of the evidence. The court determined that Eagle Discount Supermarket was largely controlling. The petitioner in that case was playing Frisbee during his lunch break while on the employer’s premises. The court in that case looked to three lines of cases: recreational-activities cases, lunch-hour cases, and the personal comfort doctrine. The court noted that as a recreational-activity case, the conclusion would result in a finding of compensability. There was sufficient employer sponsorship to make the activity incidental to the employment. The activity was an accepted, regular, and normal one that occurred on the premises during an authorized lunch break. In Suits as well, the respondent was aware that employees went on walks during breaks and encouraged it by distributing pedometers. “Moreover, claimant’s activities arguably would fall within the ambit of the personal-comfort doctrine (at least if they had been performed on respondent’s premises).” 2020 IL App (3d) 190491WC-U at ¶12.

The opinion goes on to point out that the Eagle Discount Supermarket court stated that “[i]n the lunch hour cases, the most critical factor in determining whether the accident arose out of and in the course of employment is the location of the occurrence.” 2020 IL App (3d) 190491WC-U at ¶13, quoting Eagle Discount Supermarket, supra, 412 N.E.2d at 496. Because the injury occurred on the employer’s premises, it was compensable. In this case, the injuries occurred while the petitioner was off the respondent’s premises. This militated against an award.

The petitioner in Suits argued there was a distinction because Eagle Discount Supermarket involved a lunch break and her case did not, but the court found the distinction was not significant. The petitioner argued that applying Eagle Discount Supermarket to a case such as hers would lead to anomalous results: “By finding that [claimant] cannot claim an act of personal comfort to be in the course of employment just because the employer didn’t own its premises will treat [claimant] differently than similarly situated employees who can engage in the same personal comfort and remain in the course of their employment as long as their employer owned the premises.” 2020 IL App (3d) 190491WC-U at ¶14. In the court’s opinion, these two groups of employees would not be similarly situated. One is exposed to a risk within the employer’s control, and the other is exposed to a risk outside the employer’s control. The Commission’s finding that the injuries did not occur in the course of the employment was not contrary to the manifest weight of the evidence.

The Commission further found the injuries did not arise out of the employment. The Commission noted the petitioner was not required to take walks, which was an implicit finding that the risk to which she was exposed was not incidental to the employment. The risk was common to the general public, and her employment did not result in her being exposed to it to a greater degree. The concurring Commissioner commented on the lack of evidence as to the cause of the second fall and the limited evidence regarding the raised concrete involved in the first fall. The claimant failed to carry her burden of proof, and the Commission’s finding on the arising out of employment element was also not contrary to the manifest weight of the evidence.

Amendments to the Workers’ Occupational Diseases Act for COVID-19

The amendments to the OD Act are part of P.A. 101-633 and became effective June 5, 2020. They are found in §1(g) of the OD Act, 820 ILCS 310/1(g).

Section 1(g)(1) provides, for any employee who is a COVID-19 first responder or frontline worker, that if the employee’s injury or occupational disease resulted from exposure to and contracting of COVID-19, the exposure and contraction shall be rebuttably presumed to have arisen out of and in the course of the employee’s first responder or frontline worker employment and the injury or occupational disease shall be rebuttably presumed to be causally connected to the hazards or exposures of such employment.

Section 1(g)(2) explains those employees who come within the term “COVID-19 first responder or front-line worker.” 820 ILCS 310/1(g)(2). It includes, among others, individuals employed as police, fire personnel, EMTs, healthcare providers, and any individuals employed by essential businesses and operations as defined in Executive Order No. 2020-10 (Mar. 20, 2020), 44 Ill.Reg. 5,857 (Apr. 3, 2020). These employees must be required by their employment to encounter members of the general public or work in locations of more than 15 employees. For purposes of this subsection only, an employee’s home or place of residence in not a place of employment, except for home care health workers.

Section 1(g)(3) provides for how an employer may rebut the presumptions in three subparagraphs. One means of rebuttal is by evidence that the employee was working from home, on leave from employment, or some combination thereof for 14 or more consecutive days immediately prior to the injury, occupational disease, or period of incapacity. The employer by evidence can rebut by demonstrating to the fullest extent possible or enforcing to the best of its ability industry-specific workplace sanitation, social distancing, and health and safety practices based on updated guidance from the Centers for Disease Control and Prevention or Illinois Department of Public Health among other methods. Such methods are required to be implemented for all employees at least 14 consecutive days prior to the employee’s injury, occupational disease, or period of incapacity. The subparagraph provides definitions for the terms “updated” and “personal protective equipment.” 820 ILCS 310/1(g)(3). The employer may also rebut the presumption with evidence that the employee was exposed to COVID-19 by an alternate source.

Section 1(g)(4) provides that the rebuttable presumption applies to all cases tried after the effective date of the amendatory Act and in which the diagnosis of COVID-19 was made on or after March 9, 2020, and on or before December 31, 2020.

Section 1(g)(5) provides that “[u]nder no circumstances shall any COVID-19 case increase or affect any employer’s workers’ compensation insurance experience rating or modification, but COVID-19 costs may be included in determining overall State loss costs.” 820 ILCS 310/1(g)(5).

Under §1(g)(6), if the diagnosis was made on or before June 15, 2020, the employee must provide a confirmed medical diagnosis by a licensed medical practitioner or a positive laboratory test for COVID-19 or for COVID-19 antibodies for the presumption to apply. For diagnoses after June 15, 2020, an employee must provide a positive laboratory test for COVID-19 or for COVID-19 antibodies.

Section 1(g)(7) states the presumption does not apply if the employee’s place of employment was solely the employee’s home or residence for a period of 14 or more consecutive days immediately prior to the injury, occupational disease, or period of incapacity.

Under §1(g)(8) the date of injury, disease, or period of disability is either the date the employee was unable to work due to contraction of COVID-19 or was unable to work due to symptoms that were later diagnosed as COVID-19, whichever came first.

Section 1(g)(9) allows for an employee who fails to establish the rebuttable presumption to be able to file for compensation under either the OD Act or the Workers’ Compensation Act, 820 ILCS 305/1, et seq.

Section 1(g)(10) requires the employee to be certified or recertified for temporary disability to qualify for temporary total disability (TTD) benefits under the presumption.

Section 1(g)(11) provides an employer credit against liability for TTD for sick leave benefits or extended salary benefits paid to the employee by the employer under the Emergency Family Medical Leave Expansion Act, Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act, or any other federal law, or any other credit allowed under the Workers’ Compensation Act.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) (IICLE®, 2019). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

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