Work Comp Act Section 4

§4(a): Employer Must Obtain Insurance

Section 4.

(a) Any employer, including but not limited to general contractors and their subcontractors, who shall come within the provisions of Section 3 of this Act, and any other employer who shall elect to provide and pay the compensation provided for in this Act shall:

(1) File with the Commission annually an application for approval as a self-insurer which shall include a current financial statement, and annually, thereafter, an application for renewal of self-insurance, which shall include a current financial statement. Said application and financial statement shall be signed and sworn to by the president or vice president and secretary or assistant secretary of the employer if it be a corporation, or by all of the partners, if it be a copartnership, or by the owner if it be neither a copartnership nor a corporation. All initial applications and all applications for renewal of self-insurance must be submitted at least 60 days prior to the requested effective date of self-insurance. An employer may elect to provide and pay compensation as provided for in this Act as a member of a group workers’ compensation pool under Article V 3/4 of the Illinois Insurance Code. If an employer becomes a member of a group workers’ compensation pool, the employer shall not be relieved of any obligations imposed by this Act.

If the sworn application and financial statement of any such employer does not satisfy the Commission of the financial ability of the employer who has filed it, the Commission shall require such employer to,

(2) Furnish security, indemnity or a bond guaranteeing the payment by the employer of the compensation provided for in this Act, provided that any such employer whose application and financial statement shall not have satisfied the commission of his or her financial ability and who shall have secured his liability in part by excess liability insurance shall be required to furnish to the Commission security, indemnity or bond guaranteeing his or her payment up to the effective limits of the excess coverage, or

(3) Insure his entire liability to pay such compensation in some insurance carrier authorized, licensed, or permitted to do such insurance business in this State. Every policy of an insurance carrier, insuring the payment of compensation under this Act shall cover all the employees and the entire compensation liability of the insured: Provided, however, that any employer may insure his or her compensation liability with 2 or more insurance carriers or may insure a part and qualify under subsection 1, 2, or 4 for the remainder of his or her liability to pay such compensation, subject to the following two provisions:

Firstly, the entire compensation liability of the employer to employees working at or from one location shall be insured in one such insurance carrier or shall be self-insured, and

Secondly, the employer shall submit evidence satisfactorily to the Commission that his or her entire liability for the compensation provided for in this Act will be secured. Any provisions in any policy, or in any endorsement attached thereto, attempting to limit or modify in any way, the liability of the insurance carriers issuing the same except as otherwise provided herein shall be wholly void.

Nothing herein contained shall apply to policies of excess liability carriage secured by employers who have been approved by the Commission as self-insurers, or

(4) Make some other provision, satisfactory to the Commission, for the securing of the payment of compensation provided for in this Act, and

(5) Upon becoming subject to this Act and thereafter as often as the Commission may in writing demand, file with the Commission in form prescribed by it evidence of his or her compliance with the provision of this Section.

§4(a-1): Base Employer’s Premium on Work Site

Regardless of its state of domicile or its principal place of business, an employer shall make payments to its insurance carrier or group self-insurance fund, where applicable, based upon the premium rates of the situs where the work or project is located in Illinois if:

(A) the employer is engaged primarily in the building and construction industry; and

(B) subdivision (a)(3) of this Section applies to the employer or the employer is a member of a group self-insurance plan as defined in subsection (1) of Section 4a.

The Illinois Workers’ Compensation Commission shall impose a penalty upon an employer for violation of this subsection (a-1) if:

(i) the employer is given an opportunity at a hearing to present evidence of its compliance with this subsection (a-1); and

(ii) after the hearing, the Commission finds that the employer failed to make payments upon the premium rates of the situs where the work or project is located in Illinois.

The penalty shall not exceed $1,000 for each day of work for which the employer failed to make payments upon the premium rates of the situs where the work or project is located in Illinois, but the total penalty shall not exceed $50,000 for each project or each contract under which the work was performed.

Any penalty under this subsection (a-1) must be imposed not later than one year after the expiration of the applicable limitation period specified in subsection (d) of Section 6 of this Act. Penalties imposed under this subsection (a-1) shall be deposited into the Illinois Workers’ Compensation Commission Operations Fund, a special fund that is created in the State treasury. Subject to appropriation, moneys in the Fund shall be used solely for the operations of the Illinois Workers’ Compensation Commission and by the Department of Insurance for the purposes authorized in subsection (c) of Section 25.5 of this Act.

(a-2) Every Employee Leasing Company (ELC), as defined in Section 15 of the Employee Leasing Company Act, shall at a minimum provide the following information to the Commission or any entity designated by the Commission regarding each workers’ compensation insurance policy issued to the ELC:

(1) Any client company of the ELC listed as an additional named insured.

(2) Any informational schedule attached to the master policy that identifies any individual client company’s name, FEIN, and job location.

(3) Any certificate of insurance coverage document issued to a client company specifying its rights and obligations under the master policy that establishes both the identity and status of the client, as well as the dates of inception and termination of coverage, if applicable.

(b) The sworn application and financial statement, or security, indemnity or bond, or amount of insurance, or other provisions, filed, furnished, carried, or made by the employer, as the case may be, shall be subject to the approval of the Commission.

Deposits under escrow agreements shall be cash, negotiable United States government bonds or negotiable general obligation bonds of the State of Illinois. Such cash or bonds shall be deposited in escrow with any State or National Bank or Trust Company having trust authority in the State of Illinois.

Upon the approval of the sworn application and financial statement, security, indemnity or bond or amount of insurance, filed, furnished or carried, as the case may be, the Commission shall send to the employer written notice of its approval thereof. The certificate of compliance by the employer with the provisions of subparagraphs (2) and (3) of paragraph (a) of this Section shall be delivered by the insurance carrier to the Illinois Workers’ Compensation Commission within five days after the effective date of the policy so certified. The insurance so certified shall cover all compensation liability occurring during the time that the insurance is in effect and no further certificate need be filed in case such insurance is renewed, extended or otherwise continued by such carrier. The insurance so certified shall not be cancelled or in the event that such insurance is not renewed, extended or otherwise continued, such insurance shall not be terminated until at least 10 days after receipt by the Illinois Workers’ Compensation Commission of notice of the cancellation or termination of said insurance; provided, however, that if the employer has secured insurance from another insurance carrier, or has otherwise secured the payment of compensation in accordance with this Section, and such insurance or other security becomes effective prior to the expiration of the 10 days, cancellation or termination may, at the option of the insurance carrier indicated in such notice, be effective as of the effective date of such other insurance or security.

§4(c): Workers’ Compensation Insurance Hearings

(c) Whenever the Commission shall find that any corporation, company, association, aggregation of individuals, reciprocal or interinsurers exchange, or other insurer effecting workers’ compensation insurance in this State shall be insolvent, financially unsound, or unable to fully meet all payments and liabilities assumed or to be assumed for compensation insurance in this State, or shall practice a policy of delay or unfairness toward employees in the adjustment, settlement, or payment of benefits due such employees, the Commission may after reasonable notice and hearing order and direct that such corporation, company, association, aggregation of individuals, reciprocal or interinsurers exchange, or insurer, shall from and after a date fixed in such order discontinue the writing of any such workers’ compensation insurance in this State. Subject to such modification of the order as the Commission may later make on review of the order, as herein provided, it shall thereupon be unlawful for any such corporation, company, association, aggregation of individuals, reciprocal or interinsurers exchange, or insurer to effect any workers’ compensation insurance in this State. A copy of the order shall be served upon the Director of Insurance by registered mail. Whenever the Commission finds that any service or adjustment company used or employed by a self-insured employer or by an insurance carrier to process, adjust, investigate, compromise or otherwise handle claims under this Act, has practiced or is practicing a policy of delay or unfairness toward employees in the adjustment, settlement or payment of benefits due such employees, the Commission may after reasonable notice and hearing order and direct that such service or adjustment company shall from and after a date fixed in such order be prohibited from processing, adjusting, investigating, compromising or otherwise handling claims under this Act.

IWCC May Disqualify Employer’s Self-Ins. Privilege

Whenever the Commission finds that any self-insured employer has practiced or is practicing delay or unfairness toward employees in the adjustment, settlement or payment of benefits due such employees, the Commission may, after reasonable notice and hearing, order and direct that after a date fixed in the order such self-insured employer shall be disqualified to operate as a self-insurer and shall be required to insure his entire liability to pay compensation in some insurance carrier authorized, licensed and permitted to do such insurance business in this State, as provided in subparagraph 3 of paragraph (a) of this Section.

All orders made by the Commission under this Section shall be subject to review by the courts, said review to be taken in the same manner and within the same time as provided by Section 19 of this Act for review of awards and decisions of the Commission, upon the party seeking the review filing with the clerk of the court to which said review is taken a bond in an amount to be fixed and approved by the court to which the review is taken, conditioned upon the payment of all compensation awarded against the person taking said review pending a decision thereof and further conditioned upon such other obligations as the court may impose. Upon the review the Circuit Court shall have power to review all questions of fact as well as of law. The penalty hereinafter provided for in this paragraph shall not attach and shall not begin to run until the final determination of the order of the Commission.

§4(d): Penalties For Employer Lacking Insurance

(d) Whenever a panel of 3 Commissioners comprised of one member of the employing class, one member of the employee class, and one member not identified with either the employing or employee class, with due process and after a hearing, determines an employer has knowingly failed to provide coverage as required by paragraph (a) of this Section, the failure shall be deemed an immediate serious danger to public health, safety, and welfare sufficient to justify service by the Commission of a work-stop order on such employer, requiring the cessation of all business operations of such employer at the place of employment or job site. Any law enforcement agency in the State shall, at the request of the Commission, render any assistance necessary to carry out the provisions of this Section, including, but not limited to, preventing any employee of such employer from remaining at a place of employment or job site after a work-stop order has taken effect. Any work-stop order shall be lifted upon proof of insurance as required by this Act. Any orders under this Section are appealable under Section 19(f) to the Circuit Court.

Any individual employer, corporate officer or director of a corporate employer, partner of an employer partnership, or member of an employer limited liability company who knowingly fails to provide coverage as required by paragraph (a) of this Section is guilty of a Class 4 felony. This provision shall not apply to any corporate officer or director of any publicly-owned corporation. Each day’s violation constitutes a separate offense. The State’s Attorney of the county in which the violation occurred, or the Attorney General, shall bring such actions in the name of the People of the State of Illinois, or may, in addition to other remedies provided in this Section, bring an action for an injunction to restrain the violation or to enjoin the operation of any such employer.

Any individual employer, corporate officer or director of a corporate employer, partner of an employer partnership, or member of an employer limited liability company who negligently fails to provide coverage as required by paragraph (a) of this Section is guilty of a Class A misdemeanor. This provision shall not apply to any corporate officer or director of any publicly-owned corporation. Each day’s violation constitutes a separate offense. The State’s Attorney of the county in which the violation occurred, or the Attorney General, shall bring such actions in the name of the People of the State of Illinois.

The criminal penalties in this subsection (d) shall not apply where there exists a good faith dispute as to the existence of an employment relationship. Evidence of good faith shall include, but not be limited to, compliance with the definition of employee as used by the Internal Revenue Service.

Noncomplying Employers Lose Protections of Act

Employers who are subject to and who knowingly fail to comply with this Section shall not be entitled to the benefits of this Act during the period of noncompliance, but shall be liable in an action under any other applicable law of this State. In the action, such employer shall not avail himself or herself of the defenses of assumption of risk or negligence or that the injury was due to a co-employee. In the action, proof of the injury shall constitute prima facie evidence of negligence on the part of such employer and the burden shall be on such employer to show freedom of negligence resulting in the injury. The employer shall not join any other defendant in any such civil action. Nothing in this amendatory Act of the 94th General Assembly shall affect the employee’s rights under subdivision (a)3 of Section 1 of this Act. Any employer or carrier who makes payments under subdivision (a)3 of Section 1 of this Act shall have a right of reimbursement from the proceeds of any recovery under this Section.

An employee of an uninsured employer, or the employee’s dependents in case death ensued, may, instead of proceeding against the employer in a civil action in court, file an application for adjustment of claim with the Commission in accordance with the provisions of this Act and the Commission shall hear and determine the application for adjustment of claim in the manner in which other claims are heard and determined before the Commission.

All proceedings under this subsection (d) shall be reported on an annual basis to the Workers’ Compensation Advisory Board.

An investigator with the Illinois Workers’ Compensation Commission Insurance Compliance Division may issue a citation to any employer that is not in compliance with its obligation to have workers’ compensation insurance under this Act. The amount of the fine shall be based on the period of time the employer was in non-compliance, but shall be no less than $500, and shall not exceed $2,500. An employer that has been issued a citation shall pay the fine to the Commission and provide to the Commission proof that it obtained the required workers’ compensation insurance within 10 days after the citation was issued. This Section does not affect any other obligations this Act imposes on employers.

Upon a finding by the Commission, after reasonable notice and hearing, of the knowing and wilful failure or refusal of an employer to comply with any of the provisions of paragraph (a) of this Section or the failure or refusal of an employer, service or adjustment company, or an insurance carrier to comply with any order of the Illinois Workers’ Compensation Commission pursuant to paragraph (c) of this Section disqualifying him or her to operate as a self insurer and requiring him or her to insure his or her liability, the Commission may assess a civil penalty of up to $500 per day for each day of such failure or refusal after the effective date of this amendatory Act of 1989. The minimum penalty under this Section shall be the sum of $10,000. Each day of such failure or refusal shall constitute a separate offense. The Commission may assess the civil penalty personally and individually against the corporate officers and directors of a corporate employer, the partners of an employer partnership, and the members of an employer limited liability company, after a finding of a knowing and willful refusal or failure of each such named corporate officer, director, partner, or member to comply with this Section. The liability for the assessed penalty shall be against the named employer first, and if the named employer fails or refuses to pay the penalty to the Commission within 30 days after the final order of the Commission, then the named corporate officers, directors, partners, or members who have been found to have knowingly and willfully refused or failed to comply with this Section shall be liable for the unpaid penalty or any unpaid portion of the penalty. Upon investigation by the insurance non-compliance unit of the Commission the Attorney General shall have the authority to prosecute all proceedings to enforce the civil and administrative provisions of this Section before the Commission. The Commission shall promulgate procedural rules for enforcing this Section.

Upon the failure or refusal of any employer, service or adjustment company or insurance carrier to comply with the provisions of this Section and with the orders of the Commission under this Section, or the order of the court on review after final adjudication, the Commission may bring a civil action to recover the amount of the penalty in Cook County or in Sangamon County in which litigation the Commission shall be represented by the Attorney General. The Commission shall send notice of its finding of non-compliance and assessment of the civil penalty to the Attorney General. It shall be the duty of the Attorney General within 30 days after receipt of the notice, to institute prosecutions and promptly prosecute all reported violations of this Section.

Any individual employer, corporate officer or director of a corporate employer, partner of an employer partnership, or member of an employer limited liability company who, with the intent to avoid payment of compensation under this Act to an injured employee or the employee’s dependents, knowingly transfers, sells, encumbers, assigns, or in any manner disposes of, conceals, secretes, or destroys any property belonging to the employer, officer, director, partner, or member is guilty of a Class 4 felony.

Injured Workers’ Benefit Fund

Penalties and fines collected pursuant to this paragraph (d) shall be deposited upon receipt into a special fund which shall be designated the Injured Workers’ Benefit Fund, of which the State Treasurer is ex-officio custodian, such special fund to be held and disbursed in accordance with this paragraph (d) for the purposes hereinafter stated in this paragraph (d), upon the final order of the Commission. The Injured Workers’ Benefit Fund shall be deposited the same as are State funds and any interest accruing thereon shall be added thereto every 6 months. The Injured Workers’ Benefit Fund is subject to audit the same as State funds and accounts and is protected by the general bond given by the State Treasurer. The Injured Workers’ Benefit Fund is considered always appropriated for the purposes of disbursements as provided in this paragraph, and shall be paid out and disbursed as herein provided and shall not at any time be appropriated or diverted to any other use or purpose. Moneys in the Injured Workers’ Benefit Fund shall be used only for payment of workers’ compensation benefits for injured employees when the employer has failed to provide coverage as determined under this paragraph (d) and has failed to pay the benefits due to the injured employee. The Commission shall have the right to obtain reimbursement from the employer for compensation obligations paid by the Injured Workers’ Benefit Fund. Any such amounts obtained shall be deposited by the Commission into the Injured Workers’ Benefit Fund. If an injured employee or his or her personal representative receives payment from the Injured Workers’ Benefit Fund, the State of Illinois has the same rights under paragraph (b) of Section 5 that the employer who failed to pay the benefits due to the injured employee would have had if the employer had paid those benefits, and any moneys recovered by the State as a result of the State’s exercise of its rights under paragraph (b) of Section 5 shall be deposited into the Injured Workers’ Benefit Fund. The custodian of the Injured Workers’ Benefit Fund shall be joined with the employer as a party respondent in the application for adjustment of claim. After July 1, 2006, the Commission shall make disbursements from the Fund once each year to each eligible claimant. An eligible claimant is an injured worker who has within the previous fiscal year obtained a final award for benefits from the Commission against the employer and the Injured Workers’ Benefit Fund and has notified the Commission within 90 days of receipt of such award. Within a reasonable time after the end of each fiscal year, the Commission shall make a disbursement to each eligible claimant. At the time of disbursement, if there are insufficient moneys in the Fund to pay all claims, each eligible claimant shall receive a pro-rata share, as determined by the Commission, of the available moneys in the Fund for that year. Payment from the Injured Workers’ Benefit Fund to an eligible claimant pursuant to this provision shall discharge the obligations of the Injured Workers’ Benefit Fund regarding the award entered by the Commission.

(e) This Act shall not affect or disturb the continuance of any existing insurance, mutual aid, benefit, or relief association or department, whether maintained in whole or in part by the employer or whether maintained by the employees, the payment of benefits of such association or department being guaranteed by the employer or by some person, firm or corporation for him or her: Provided, the employer contributes to such association or department an amount not less than the full compensation herein provided, exclusive of the cost of the maintenance of such association or department and without any expense to the employee. This Act shall not prevent the organization and maintaining under the insurance laws of this State of any benefit or insurance company for the purpose of insuring against the compensation provided for in this Act, the expense of which is maintained by the employer. This Act shall not prevent the organization or maintaining under the insurance laws of this State of any voluntary mutual aid, benefit or relief association among employees for the payment of additional accident or sick benefits.

(f) No existing insurance, mutual aid, benefit or relief association or department shall, by reason of anything herein contained, be authorized to discontinue its operation without first discharging its obligations to any and all persons carrying insurance in the same or entitled to relief or benefits therein.

(g) Any contract, oral, written or implied, of employment providing for relief benefit, or insurance or any other device whereby the employee is required to pay any premium or premiums for insurance against the compensation provided for in this Act shall be null and void. Any employer withholding from the wages of any employee any amount for the purpose of paying any such premium shall be guilty of a Class B misdemeanor.

In the event the employer does not pay the compensation for which he or she is liable, then an insurance company, association or insurer which may have insured such employer against such liability shall become primarily liable to pay to the employee, his or her personal representative or beneficiary the compensation required by the provisions of this Act to be paid by such employer. The insurance carrier may be made a party to the proceedings in which the employer is a party and an award may be entered jointly against the employer and the insurance carrier.

§4(h): Unlawful Discrimination

(h) It shall be unlawful for any employer, insurance company or service or adjustment company to interfere with, restrain or coerce an employee in any manner whatsoever in the exercise of the rights or remedies granted to him or her by this Act or to discriminate, attempt to discriminate, or threaten to discriminate against an employee in any way because of his or her exercise of the rights or remedies granted to him or her by this Act.

It shall be unlawful for any employer, individually or through any insurance company or service or adjustment company, to discharge or to threaten to discharge, or to refuse to rehire or recall to active service in a suitable capacity an employee because of the exercise of his or her rights or remedies granted to him or her by this Act.

(i) If an employer elects to obtain a life insurance policy on his employees, he may also elect to apply such benefits in satisfaction of all or a portion of the death benefits payable under this Act, in which case, the employer’s compensation premium shall be reduced accordingly.

(j) Within 45 days of receipt of an initial application or application to renew self-insurance privileges the Self-Insurers Advisory Board shall review and submit for approval by the Chairman of the Commission recommendations of disposition of all initial applications to self-insure and all applications to renew self-insurance privileges filed by private self-insurers pursuant to the provisions of this Section and Section 4a-9 of this Act. Each private self-insurer shall submit with its initial and renewal applications the application fee required by Section 4a-4 of this Act.

The Chairman of the Commission shall promptly act upon all initial applications and applications for renewal in full accordance with the recommendations of the Board or, should the Chairman disagree with any recommendation of disposition of the Self-Insurer’s Advisory Board, he shall within 30 days of receipt of such recommendation provide to the Board in writing the reasons supporting his decision. The Chairman shall also promptly notify the employer of his decision within 15 days of receipt of the recommendation of the Board.

If an employer is denied a renewal of self-insurance privileges pursuant to application it shall retain said privilege for 120 days after receipt of a notice of cancellation of the privilege from the Chairman of the Commission.

All orders made by the Chairman under this Section shall be subject to review by the courts, such review to be taken in the same manner and within the same time as provided by subsection (f) of Section 19 of this Act for review of awards and decisions of the Commission, upon the party seeking the review filing with the clerk of the court to which such review is taken a bond in an amount to be fixed and approved by the court to which the review is taken, conditioned upon the payment of all compensation awarded against the person taking such review pending a decision thereof and further conditioned upon such other obligations as the court may impose. Upon the review the Circuit Court shall have power to review all questions of fact as well as of law.

(Source: 93-721, eff. 1-1-05; 94-277, eff. 7-20-05.)

Section 4a. Repealed.

(Source: P.A. 89-97, eff. 7-7-95. Repealed by P.A. 91-757, eff. 1-1-01.)

§4a-1: Self-Insurers Advisory Board Created

Section 4a-1.

The Self-Insurers Advisory Board is hereby established within the Commission for the purpose of providing for the continuation of workers’ compensation and occupational disease benefits due and unpaid or interrupted due to the inability of an insolvent self-insurer as defined in subsection (d) of Section 4a-2 to meet its compensation obligations when the employers’ financial resources, security deposit, guaranty agreements, surety agreements and excess insurance are either inadequate or not immediately accessible for the payment of benefits, and to review and recommend to the Chairman of the Commission the disposition of all initial and renewal applications to self-insure filed by private self-insurers under this Act and the Workers’ Occupational Diseases Act.

(Source: P.A. 85-1385.)

§4a-2: Self-Insurers Advisory Board—Definitions

Section 4a-2. As used in Sections 4a-1 through 4a-9:

(a) “Board” means the Self-Insurers Advisory Board created by Section 4a-1.

(b) “Chairman” means the Chairman of the Illinois Workers’ Compensation Commission.

(c) “Private self-insurer” means a private employer that has been authorized to self-insure its payment of workers’ compensation benefits pursuant to subsection (a) of Section 4 of this Act or to self-insure its payment of occupational disease benefits pursuant to subsection (a) of Section 4 of the Workers’ Occupational Diseases Act but does not include group self-insured employers under Section 4a of this Act or Section 4a of the Workers’ Occupational Diseases Act or the State of Illinois, any political subdivision of the State, unit of local government or school district, or any other public authorities or quasi-governmental bodies including any subunits of the foregoing entities.

(d) “Insolvent self-insurer” means a private self-insurer financially unable to pay compensation due under this Act, which (i) has filed either prior to or after the effective date of this Section or (ii) is the subject party in any proceeding under the Federal Bankruptcy Reform Act of 1978, or is the subject party in any proceeding in which a receiver, custodian, liquidator, rehabilitation, sequestrator, trustee or similar officer has been appointed by any Court to act in lieu of or on behalf of that self-insurer.

(e) “Fund” means the Self-Insurers Security Fund established by Section 4a-5.

(f) “Trustee” means a member of the Self-Insurers Advisory Board.

(g) “Self-Insurers Administration Fund” means the Fund established by Section 4a-6.1.

(h) “Application fee” means the application fee provided for in Section 4a-4.

(Source: P.A. 93-721, eff. 1-1-05.)

§4a-3: Self-Insurers Advisory Board Members

Section 4a-3.

(a) The Board shall consist of the Chairman of the Illinois Workers’ Compensation Commission, as Chairman of the Board, and six other members appointed by the Chairman who shall be expert in matters of self-insurance for workers’ compensation liability. One such member shall represent the general public. The Trustees shall initially be appointed by the Chairman within 30 days of the effective date of this amendatory Act of 1985. Three of the Trustees initially appointed by the Chairman shall serve for a two-year term ending January 1, 1988, and three shall serve for a four-year term ending January 1, 1990. Thereafter, each Trustee shall be appointed to a four-year term and shall continue to serve until his successor is appointed.

(b) A vacancy in the office of any appointed member shall occur upon his resignation, death, or conviction of a felony. The Chairman may remove any member from office on a formal finding of incompetence, neglect of duty or malfeasance in office. Within 30 days after the office of any appointed member becomes vacant for any reason, the Chairman shall fill that vacancy for the unexpired term in the same manner as that in which appointments are made.

(Source: P.A. 93-721, eff. 1-1-05.)

§4a-4: Self-Insurers Advisory Board—Powers

Section 4a-4.

The Self-Insurers Advisory Board shall possess all powers necessary and convenient to accomplish the objects prescribed by this Act, including but not limited to the following:

(a) The Board shall make such bylaws, rules, regulations and resolutions as are necessary to carry out its responsibilities. The Board may carry out its responsibilities directly or by contract or other instrument, and may purchase such services and collect and borrow such funds as it deems necessary to effectuate its activities and protect the members of the Board and its employees. The Board shall appoint, retain and employ such persons as it deems necessary to achieve the purposes of the Board. The Chairman shall be the chief administrative officer of the Board, and he or she shall have general supervisory authority over all employees of the Board. Designated employees shall be subject to the Illinois Personnel Code. All expenses incurred pursuant to this provision shall be paid from the Self-Insurers Administration Fund. Each private self-insurer applying for self-insurance and for renewal of the self-insurance privilege shall pay with its application a non-refundable application fee in the amount of $500, which shall be deposited upon receipt by the Commission into the Self-Insurers Administration Fund and used only for the purposes set forth in this Section. An application fee shall be required of each corporation and each and every corporate subsidiary.

(b) The Board shall meet no less than quarterly and shall meet at other times upon the call of the Chairman, issued to the Trustees in writing no less than 48 hours prior to the day and hour of the meeting, or upon a request for a meeting presented in writing to the Chairman no less than 72 hours prior to the proposed day and hour of the meeting and signed by at least a majority of the Trustees, whereupon the Chairman shall provide notice issued in writing to the Trustees no less than 48 hours prior to the meeting and shall convene the meeting at the time and place stated in the request.

(c) Four Trustees shall constitute a quorum to transact business at any meeting, and the affirmative vote of four Trustees shall be necessary for any action taken by the Board. No vacancy shall otherwise impair the rights of the remaining Trustees to exercise all of the powers of the Board.

(d) The Board shall serve without compensation, but each member shall be entitled to be reimbursed for necessary and actual expenses incurred in the discharge of his official duties.

(e) The Board shall have the right to sue and be sued in the name of the Commission.

(Source: P.A. 85-1385.)

§4a-5: Self-Insurers Security Fund Created

Section 4a-5.

There is hereby created a Self-Insurers Security Fund. The State Treasurer shall be the ex-officio custodian of the Self-Insurers Security Fund. Monies in the Fund shall be deposited in a separate account in the same manner as are State Funds and any interest accruing thereon shall be added thereto every 6 months. It shall be subject to audit the same as State funds and accounts and shall be protected by the general bond given by the State Treasurer. The funds in the Self-Insurers Security Fund shall not be subject to appropriation and shall be made available for the purposes of compensating employees who are eligible to receive benefits from their employers pursuant to the provisions of the Workers’ Compensation Act or Workers’ Occupational Diseases Act, when, pursuant to this Section, the Board has determined that a private self-insurer has become an insolvent self-insurer and is unable to pay compensation benefits due to financial insolvency. Monies in the Fund may be used to compensate any type of injury or occupational disease which is compensable under either Act, and all claims for related administrative fees, operating costs of the Board, attorneys fees, and other costs reasonably incurred by the Board. Payment from the Self-Insurers Security Fund shall be made by the Comptroller only upon the authorization of the Chairman as evidenced by properly certified vouchers of the Commission, upon the direction of the Board.

(Source: P.A. 85-1385.)

§4a-6: Self-Insurers Insolvency Fund

Section 4a-6.

(a) Whenever a private self-insurer shall become an insolvent self-insurer and the surety, the guarantor, the excess insurance company and the holder of the securities, indemnities or bond provided by the insolvent self-insurer to secure its payment of compensation under this Act or the Workers’ Occupational Diseases Act, are unwilling or unable to administer and defend the claims against the insolvent self-insurer, the Board is empowered to and shall assume on behalf of the Commission the outstanding workers’ compensation and occupational disease obligations of the insolvent self-insured and shall take all steps necessary to collect, recover and enforce all securities, indemnity, insurance or bonds furnished by such self-insurer guaranteeing the payment of compensation provided in such Acts for the purpose of paying outstanding obligations of the insolvent self-insurer. Upon the direction of the Board, the Commission shall convert and deposit into the Fund such securities and any amounts received under agreements of surety, guaranty, insurance or otherwise. Any amounts remaining from such securities, indemnity, insurance, bonds, guaranties and sureties, following payment of all compensation costs and related administrative fees of the Board including attorneys’ fees, and following exhaustion of all amounts assessed and received pursuant to Section 4a-7, shall be refunded by the Commission from the Fund as directed by the Board to the original holder one year thereafter, provided no outstanding liabilities remain against the Fund.

(i) Any private self-insurer who may become an insolvent self-insurer subject to any of the proceedings set forth in this subsection (a) shall file written notice of such fact with the Commission and the Board within 30 days of the occurrence of such event. Upon receipt of notice by the Commission and the Board from the insolvent self-insurer, or upon receipt of a notice from any person who has filed an application for adjustment of a claim against a private self-insurer which raises a reasonable question with respect to that employer’s ability to pay compensation under this Act or the Workers’ Occupational Diseases Act, the Board on behalf of the Commission shall determine the ability of that private self-insurer to pay compensation under such Acts.

(ii) The bond holder or excess insurance carrier, or both, shall provide written notification to the Commission within the 30-day period set forth in paragraph (i) that it is able and willing to administer the claims pending against the insolvent self-insurer. Should said notice not be given, the bond holder shall immediately deliver all such securities, guaranties, excess insurance, indemnity or bonds it holds to the Board; otherwise the Board shall take all action necessary on behalf of the Commission pursuant to this Section to collect or recover all such securities, guaranties, excess insurance, indemnities, or bonds.

(b) The Board shall be a party in interest in all proceedings involving compensation claims against an insolvent self-insurer whose compensation obligations have been paid or assumed by the Board and shall have all rights of subrogation of the insolvent employer. In such proceedings the Board shall assume and may exercise all rights and defenses of the insolvent self-insurer, including but not limited to,

(1) The right to appear, defend and appeal claims.

(2) The right to receive notice of, investigate, adjust, compromise, settle and pay claims.

(3) The right to investigate, handle and contest claims.

(4) The right to institute an action or to appear in any proceeding to enforce the employer’s rights under Section 5 of the Workers’ Compensation Act or Section 5 of the Workers’ Occupational Diseases Act.

(c) In any proceeding in bankruptcy, the Commission at the direction of the Board shall appear and move to lift the automatic stay and shall stand in the place of the employees in the bankruptcy proceedings.

(d) The Commission shall notify all employees of the name, address and telephone number of the party administering and defending their claims.

(Source: P.A. 85-1385.)

§4a-6.1: Self-Insurers Administration Fund Created

Section 4a-6.1. There is hereby created a Self-Insurers Administration Fund.

The State Treasurer shall be the ex-officio custodian of the Self-Insurers Administration Fund. Monies in the Self-Insurers Administration Fund shall be deposited in a separate account in the same manner as are State Funds, and any interest accruing thereon shall be added thereto every 6 months. It shall be subject to audit the same as State funds and accounts and shall be protected by the general bond given by the State Treasurer. The funds in the Self-Insurers Administration Fund shall not be subject to appropriation and shall be made available only for paying the salaries and benefits of the Self-Insurers Advisory Board employees and the operating costs of the Board. Payment from the Self-Insurers Administration Fund shall be made by the Comptroller only upon the authorization of the Chairman as evidenced by properly certified vouchers of the Commission.

(Source: P.A. 85-1385.)

§4a-7: Self-Insurers Security Fund Assessment

Section 4a-7.

(a) The Commission may upon direction of the Board from time to time assess each of the private self-insurers a pro rata share of the funding reasonably necessary to carry out its activities under this Section. The pro-rations shall be made on the basis of each self-insured’s most recent payment into the rate adjustment fund under Section 7(f) of this Act. In no event shall a private self-insurer be assessed at one time in excess of .6% of the compensation paid by that private self-insurer during the previous calendar year for claims incurred as a self-insurer. Total assessments against it in any calendar year shall not exceed 1.2% of the compensation it has paid during the previous calendar year as a self-insurer for claims incurred. Funds obtained by such assessments shall be used only for the purposes set forth in this Section, and shall be deposited upon receipt by the Commission into the Self-Insurers Security Fund. If payment of any assessment made under this subsection is not made within 30 days of the sending of the notice to the private self-insurer, the Commission at the direction of the Board shall proceed in circuit court for judgment against that private self-insurer which judgment shall include the amount of the assessment, the costs of suit, interest and reasonable attorneys’ fees.

(b) A private self-insurer which ceases to be a self-insurer shall be liable for any and all assessments made pursuant to this Section during the period following the date its certificate of authority to self-insure is withdrawn, revoked or surrendered until such time as it has discharged all obligations to pay compensation which arose during the period of time said former self-insurer was self-insured. Assessments of such a former private self-insurer shall be based on the compensation paid by the former private self-insurer during the preceding calendar year on claims that arose during the period of time said former private self-insurer was self-insured.

(c) The Board on behalf of the Commission shall annually contract for an independent certified audit of the financial activities of the Fund, and an annual report as of June 30 shall be submitted promptly by the Board to the Chairman of the Illinois Workers’ Compensation Commission and to each Trustee. Written reports of all activities shall be submitted to the Commission by the Board on a monthly basis.

(d) If there are monies remaining in the Fund after all outstanding obligations of all insolvent self-insurers have been satisfied and the costs of administration and defense have been paid, such amounts shall be returned by the Commission from the Fund as directed by the Board to the then private self-insurers in that proportion which each said private self-insurer has contributed to the Fund one year thereafter, provided no outstanding liabilities remain against the Fund.

(e) Each private self-insurer shall be subject to the direction of the Commission as provided in this Section as a condition of obtaining and maintaining its certificate of authority to self-insure.

(Source: P.A. 93-721, eff. 1-1-05.)

§4a-8: Insolvent Self-Insurer to Reimburse ISIAB

Section 4a-8.

(a) The Board on behalf of the Commission shall have the right and obligation to obtain reimbursement from an insolvent self-insurer for compensation obligations in the amount of the insolvent self-insurer’s workers’ compensation and occupational disease obligations assumed by the Board on behalf of the Commission and paid from the Fund by the Commission as directed by the Board, including but not limited to claims for all benefits and reasonable administrative and legal costs. Any such amounts obtained pursuant to this subsection shall be deposited by the Commission into the Fund. The amount of the claims for reimbursements of reasonable administrative and legal costs shall be subject to the approval of the Chairman.

(b) The Board on behalf of the Commission shall have the right and obligation to obtain from the security deposit of any insolvent self-insurer, its excess insurance carrier and from any other guarantor the amount of the insolvent self-insurer’s workers’ compensation and occupational disease obligations assumed by the Board on behalf of the Commission and paid from the Fund by the Commission as directed by the Board, including reasonable administrative and legal costs. Any such amounts obtained pursuant to this subsection shall be deposited by the Commission into the Fund. Reimbursement of reasonable administrative and legal costs shall be subject to the approval of the Chairman. The Board on behalf of the Commission shall be a party in interest in any action or proceeding to obtain the security deposit of an insolvent self-insurer for the payment of its compensation obligations, and in any action or proceeding under the insolvent self-insurer’s excess insurance policy and in any other action or proceeding to enforce an agreement of any security deposit, excess insurance carrier and from any other guarantor to satisfy such obligations.

(Source: P.A. 84-1097.)

§4a-9: Self-Insurers Advisory Board Shall Review Applications

Section 4a-9.

The Board shall on behalf of the Commission review fully all initial applications to self-insure and all applications to renew employers’ self-insurance privileges under this Act and the Workers’ Occupational Diseases Act filed by private self-insurers and all related documentation filed in support of such applications, and all related documentation filed at any other time with the Commission. The Board shall advise the Chairman of the results of its review and shall recommend for approval by the Chairman the disposition of all such applications filed by private self-insurers. The Chairman shall promptly act upon all applications in full accordance with the recommendations of the Board or, if the Chairman does not concur with the recommendations of the Board he shall within 30 days of receipt of the recommendation of the Board advise the Board in writing of the reasons supporting his decision. The Board may also request that the Chairman of the Commission from time to time require private self insurers to file additional information related to a private self-insurer’s ability to adequately secure payment of its financial obligations under such Acts. The Board may recommend to the Chairman of the Commission conditional approval of an application upon the furnishing of satisfactory evidence of appropriate and adequate security by the private self-insurer applying for self-insurer status to insure payment of its financial obligations under such Acts.

(Source: P.A. 85-1385.)

§4b: Collective Bargaining

Sec. 4b. Collective bargaining pilot program.

(a) The Director of the Department of Labor shall adopt a selection process to designate 2 international, national, or statewide organizations made up of affiliates who are the exclusive representatives of construction employer employees recognized or certified pursuant to the National Labor Relations Act to participate in the collective bargaining pilot program provided for in this Section.

(a-5) For purposes of this Section, the term “construction employer” means any person or legal entity or group of persons or legal entities engaging in or planning to engage in any constructing, altering, reconstructing, repairing, rehabilitating, refinishing, refurbishing, remodeling, remediating, renovating, custom fabricating, maintaining, landscaping, improving, wrecking, painting, decorating, demolishing, and adding to or subtracting from any building, structure, airport facility, highway, roadway, street, alley, bridge, sewer, drain, ditch, sewage disposal plant, water works, parking facility, railroad, excavation or other project, structure, development, real property or improvement, or to do any part thereof, whether or not the performance of the work herein described involves the addition to, or fabrication into, any project, structure, development, real property or improvement herein described, and shall also include any moving of construction-related materials on the job site or to or from the job site.

For purposes of this Section, “labor organization” means an affiliate of an international, national, or statewide organization that has been selected by the Department of Labor to participate in the collective bargaining pilot program as provided for in this Section.

(b) Upon appropriate filing, the Commission and the courts of this State shall recognize as valid and binding any provision in a collective bargaining agreement between any construction employer or group of construction employers and a labor organization, which contains certain obligations and procedures relating to workers’ compensation. This agreement must be limited to, but need not include, all of the following:

(1) An alternative dispute resolution (“ADR”) system to supplement, modify or replace the procedural or dispute resolution provisions of this Act. The system may include mediation, arbitration, or other dispute resolution proceedings, the results of which shall be final and binding upon the parties;

(2) An agreed list of medical treatment providers that may be the exclusive source of all medical and related treatment provided under this Act;

(3) The use of a limited list of impartial physicians to conduct independent medical examinations;

(4) The creation of a light duty, modified job, or return to work program;

(5) The use of a limited list of individuals and companies for the establishment of vocational rehabilitation or retraining programs that may be the exclusive source of rehabilitation and retraining services provided under this Act; or

(6) The establishment of joint labor management safety committees and safety procedures.

(c) Void agreements. Nothing in this Section shall be construed to authorize any provision in a collective bargaining agreement that diminishes or increases a construction employer’s entitlements under this Act or an employee’s entitlement to benefits as otherwise set forth in this Act. For the purposes of this Section, the procedural rights and dispute resolution agreements under subparagraphs (1) through (6) of subsection (b) of this Section are not agreements which diminish or increase a construction employer’s entitlements under this Act or an employee’s entitlement to benefits under this Act. Any agreement that diminishes or increases a construction employer’s entitlements under this Act or an employee’s entitlement to benefits as set forth in this Act is null and void. Nothing in this Section shall be construed as creating a mandatory subject of bargaining.

(d) Form of agreement. The agreement reached herein shall demonstrate that:

(1) The construction employer or group of construction employers and the recognized or certified exclusive bargaining representative have entered into a binding collective bargaining agreement adopting the ADR plan for a period of no less than 2 years;

(2) Contractual agreements have been reached with the construction employer’s workers’ compensation carrier, group self-insurance fund, and any excess carriers relating to the ADR plan;

(3) Procedures have been established by which claims for benefits by employees will be lodged, administered, and decided while affording procedural due process;

(4) The plan has designated forms upon which claims for benefits shall be made;

(5) The system and means by which the construction employer’s obligation to furnish medical services and vocational rehabilitation and retraining benefits shall be fulfilled and provider selected;

(6) The method by which mediators or arbitrators are to be selected.

(e) Filing. A copy of the agreement and a statement identifying the parties to the agreement shall be filed with the Commission. Within 21 days of receipt of an agreement, the Chairman shall review the agreement for compliance with this Section and notify the parties of its acceptance or notify the parties of any additional information required or any recommended modification that would bring the agreement into compliance. If no additional information or modification is required, the agreement shall be valid and binding from the time the parties receive acceptance of the agreement from the Chairman. Upon receipt of any requested information or modification, the Chairman shall notify the parties within 21 days whether the agreement is in compliance with this Section. All rejections made by the Chairman under this subsection shall be subject to review by the courts of this State, said review to be taken in the same manner and within the same time as provided by Section 19 of this Act for review of awards and decisions of the Commission. Upon the review, the Circuit Court shall have power to review all questions of fact as well as of law.

(f) Notice to insurance carrier. If the construction employer is insured under this Act, it shall provide notice to and obtain consent from its insurance carrier, in the manner provided in the insurance contract, of its intent to enter into an agreement as provided in this Section with its employees.

(g) Employees’ claims for workers’ compensation benefits.

(1) Claims for benefits shall be filed with the ADR plan administrator within those periods of limitation prescribed by this Act. Within 10 days of the filing of a claim, the ADR plan administrator shall serve a copy of the claim application upon the Commission, which shall maintain records of all ADR claims and resolutions.

(2) Settlements of claims presented to the ADR plan administrator shall be evidenced by a settlement agreement. All such settlements shall be filed with the ADR plan administrator, who within 10 days shall forward a copy to the Commission for recording.

(3) Upon assignment of claims, unless settled, mediators and arbitrators shall render final orders containing essential findings of fact, rulings of law and referring to other matters as pertinent to the questions at issue. The ADR plan administrator shall maintain a record of the proceedings.

(h) Reporting requirements. Annually, each ADR plan administrator shall submit a report to the Commission containing the following information:

(1) The number of employees within the ADR program;

(2) The number of occurrences of work-related injuries or diseases;

(3) The breakdown within the ADR program of injuries and diseases treated;

(4) The total amount of disability benefits paid within the ADR program;

(5) The total medical treatment cost paid within the ADR program;

(6) The number of claims filed within the ADR program; and

(7) The disposition of all claims.

(Source: P.A. 97-18, eff. 6-28-11.)

§4d: IWCC Operations Fund

Section 4d. Illinois Workers’ Compensation Commission Operations Fund Fee.

(a) As of the effective date of this amendatory Act of the 93rd General Assembly, each employer that self-insures its liabilities arising under this Act or Workers’ Occupational Diseases Act shall pay a fee measured by the annual actual wages paid in this State of such an employer in the manner provided in this Section. Such proceeds shall be deposited in the Illinois Workers’ Compensation Commission Operations Fund. If an employer survives or was formed by a merger, consolidation, reorganization, or reincorporation, the actual wages paid in this State of all employers party to the merger, consolidation, reorganization, or reincorporation shall, for purposes of determining the amount of the fee imposed by this Section, be regarded as those of the surviving or new employer.

(b) Beginning on July 30, 2004 (the effective date of Public Act 93-840) and on July 1 of each year thereafter, the Chairman shall charge and collect an annual Illinois Workers’ Compensation Commission Operations Fund Fee from every employer subject to subsection (a) of this Section equal to 0.0075% of its annual actual wages paid in this State as reported in each employer’s annual self-insurance renewal filed for the previous year as required by Section 4 of this Act and Section 4 of the Workers’ Occupational Diseases Act. All sums collected by the Commission under the provisions of this Section shall be paid promptly after the receipt of the same, accompanied by a detailed statement thereof, into the Illinois Workers’ Compensation Commission Operations Fund. The fee due pursuant to Public Act 93-840 shall be collected instead of the fee due on July 1, 2004 under Public Act 93-32. Payment of the fee due under Public Act 93-840 shall discharge the employer’s obligations due on July 1, 2004.

(c) In addition to the authority specifically granted under Section 16, the Chairman shall have such authority to adopt rules or establish forms as may be reasonably necessary for purposes of enforcing this Section. The Commission shall have authority to defer, waive, or abate the fee or any penalties imposed by this Section if in the Commission’s opinion the employer’s solvency and ability to meet its obligations to pay workers’ compensation benefits would be immediately threatened by payment of the fee due.

(d) When an employer fails to pay the full amount of any annual Illinois Workers’ Compensation Commission Operations Fund Fee of $100 or more due under this Section, there shall be added to the amount due as a penalty the greater of $1,000 or an amount equal to 5% of the deficiency for each month or part of a month that the deficiency remains unpaid. (e) The Commission may enforce the collection of any delinquent payment, penalty or portion thereof by legal action or in any other manner by which the collection of debts due the State of Illinois may be enforced under the laws of this State.

(f) Whenever it appears to the satisfaction of the Chairman that an employer has paid pursuant to this Act an Illinois Workers’ Compensation Commission Operations Fund Fee in an amount in excess of the amount legally collectable from the employer, the Chairman shall issue a credit memorandum for an amount equal to the amount of such overpayment. A credit memorandum may be applied for the 2-year period from the date of issuance against the payment of any amount due during that period under the fee imposed by this Section or, subject to reasonable rule of the Commission including requirement of notification, may be assigned to any other employer subject to regulation under this Act. Any application of credit memoranda after the period provided for in this Section is void.

(Source: P.A. 95-331, eff. 8-21-07.)

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