In Illinois, You Need Neither a Legislature Nor a Governor: Comp Commission Unilaterally Changes its Rules of Evidence

In this morning’s post, I was critical of a number of states whose governors had marched to the microphone and camera and, in the face of the COVID-19 pandemic, announced they were utilizing their emergency powers to change the law of workers’ compensation, typically by enacting, by executive fiat, special presumptions of compensability that favored some, though not nearly all, workers in the state who face significant risk of coronavirus exposure. In my opinion piece, I should have included a statement that I reserved the right “to revise and extend” those remarks. You see, in Illinois, you don’t need a legislature and you don’t need a governor; you have the Workers’ Compensation Commission, which can apparently act on its own.

New Rules of Evidence

This morning (April 13, 2020), at 10:00 a.m. (Central), the Commission held an emergency meeting to consider and pass an amendment to its Rules of Evidence. The amendment, hurried through during the meeting, alters the rules of evidence in “all proceedings before the Commission,” so as to provide that for certain specified workers (the list is actually pretty broad, including grocery clerks and others listed in Section 1 Part 12 of Governor Pritzker’s March 20, 2020 Executive Order 2020-10). The governor’s Order, by the way, made no mention of extending the powers of the Workers’ Commission Commission.

I’ve rather hurriedly read today’s Emergency Order by the Commission several times. My read is that if you work in any of the “essential” business areas earlier identified by the governor, and if you contract the coronavirus within the next 150 days, you enjoy a rebuttable presumption that your exposure was work-related. Again, as I pointed out earlier today, it remains to be seen just what sort of rebuttable presumption is actually triggered. I’m sure the Commission will amend that portion of the law unilaterally when it figures out what it wants to do. So, the bottom line in Illinois: the rules of evidence apply until they don’t.