Full Text of HB6647 93rd General Assembly
HB6647 93RD GENERAL ASSEMBLY
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93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004 HB6647
Introduced 02/09/04, by Jay C. Hoffman SYNOPSIS AS INTRODUCED: |
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820 ILCS 305/4 |
from Ch. 48, par. 138.4 |
820 ILCS 310/4 |
from Ch. 48, par. 172.39 |
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Amends the Workers' Compensation Act and the Workers' Occupational Diseases Act. Provides that a person who knowingly provides false information on an initial or renewal self-insurance application or accompanying financial statement is guilty of a business offense for which a fine not to exceed $50,000 may be imposed. Effective immediately.
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A BILL FOR
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HB6647 |
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LRB093 19310 WGH 45046 b |
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| AN ACT concerning employment.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Workers' Compensation Act is amended by | 5 |
| changing Section 4 as follows:
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| (820 ILCS 305/4) (from Ch. 48, par. 138.4)
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| Sec. 4. (a) Any employer, including but not limited to | 8 |
| general contractors
and their subcontractors, who shall come | 9 |
| within the provisions of
Section 3 of this Act, and any other | 10 |
| employer who shall elect to provide
and pay the compensation | 11 |
| provided for in this Act shall:
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| (1) File with the Commission annually an application | 13 |
| for approval as a
self-insurer which shall include a | 14 |
| current financial statement, and
annually, thereafter, an | 15 |
| application for renewal of self-insurance, which
shall | 16 |
| include a current financial statement. Said
application | 17 |
| and financial statement shall be signed and sworn to by the
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| president or vice president and secretary or assistant | 19 |
| secretary of the
employer if it be a corporation, or by all | 20 |
| of the partners, if it be a
copartnership, or by the owner | 21 |
| if it be neither a copartnership nor a
corporation. All | 22 |
| initial applications and all applications for renewal of
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| self-insurance must be submitted at least 60 days prior to | 24 |
| the requested
effective date of self-insurance. An | 25 |
| employer may elect to provide and pay
compensation as | 26 |
| provided
for in this Act as a member of a group workers' | 27 |
| compensation pool under Article
V 3/4 of the Illinois | 28 |
| Insurance Code. If an employer becomes a member of a
group | 29 |
| workers' compensation pool, the employer shall not be | 30 |
| relieved of any
obligations imposed by this Act. A person | 31 |
| who knowingly provides false information on an initial or | 32 |
| renewal self-insurance application or accompanying |
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| financial statement is guilty of a business offense for | 2 |
| which a fine not to exceed $50,000 may be imposed.
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| If the sworn application and financial statement of any | 4 |
| such employer
does not satisfy the Commission of the | 5 |
| financial ability of the employer
who has filed it, the | 6 |
| Commission shall require such employer to,
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| (2) Furnish security, indemnity or a bond guaranteeing | 8 |
| the payment
by the employer of the compensation provided | 9 |
| for in this Act, provided
that any such employer whose | 10 |
| application and financial statement shall
not have | 11 |
| satisfied the commission of his or her financial ability | 12 |
| and
who shall have secured his liability in part by excess | 13 |
| liability insurance
shall be required to furnish to the | 14 |
| Commission security, indemnity or bond
guaranteeing his or | 15 |
| her payment up to the effective limits of the excess
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| coverage, or
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| (3) Insure his entire liability to pay such | 18 |
| compensation in some
insurance carrier authorized, | 19 |
| licensed, or permitted to do such
insurance business in | 20 |
| this State. Every policy of an insurance carrier,
insuring | 21 |
| the payment of compensation under this Act shall cover all | 22 |
| the
employees and the entire compensation liability of the | 23 |
| insured:
Provided, however, that any employer may insure | 24 |
| his or her compensation
liability with 2 or more insurance | 25 |
| carriers or may insure a part and
qualify under subsection | 26 |
| 1, 2, or 4 for the remainder of his or her
liability to pay | 27 |
| such compensation, subject to the following two | 28 |
| provisions:
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| Firstly, the entire compensation liability of the | 30 |
| employer to
employees working at or from one location | 31 |
| shall be insured in one such
insurance carrier or shall | 32 |
| be self-insured, and
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| Secondly, the employer shall submit evidence | 34 |
| satisfactorily to the
Commission that his or her entire | 35 |
| liability for the compensation provided
for in this Act | 36 |
| will be secured. Any provisions in any policy, or in |
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| any
endorsement attached thereto, attempting to limit | 2 |
| or modify in any way,
the liability of the insurance | 3 |
| carriers issuing the same except as
otherwise provided | 4 |
| herein shall be wholly void.
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| Nothing herein contained shall apply to policies of | 6 |
| excess liability
carriage secured by employers who have | 7 |
| been approved by the Commission
as self-insurers, or
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| (4) Make some other provision, satisfactory to the | 9 |
| Commission, for
the securing of the payment of compensation | 10 |
| provided for in this Act,
and
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| (5) Upon becoming subject to this Act and thereafter as | 12 |
| often as the
Commission may in writing demand, file with | 13 |
| the Commission in form prescribed
by it evidence of his or | 14 |
| her compliance with the provision of this Section.
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| (a-1) Regardless of its state of domicile or its principal | 16 |
| place of
business, an employer shall make payments to its | 17 |
| insurance carrier or group
self-insurance fund, where | 18 |
| applicable, based upon the premium rates of the
situs where the | 19 |
| work or project is located in Illinois if:
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| (A) the employer is engaged primarily in the building | 21 |
| and
construction industry; and
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| (B) subdivision (a)(3) of this Section applies to the | 23 |
| employer or
the employer is a member of a group | 24 |
| self-insurance plan as defined in
subsection (1) of Section | 25 |
| 4a.
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| The Industrial Commission shall impose a penalty upon an | 27 |
| employer
for violation of this subsection (a-1) if:
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| (i) the employer is given an opportunity at a hearing | 29 |
| to present
evidence of its compliance with this subsection | 30 |
| (a-1); and
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| (ii) after the hearing, the Commission finds that the | 32 |
| employer
failed to make payments upon the premium rates of | 33 |
| the situs where the work or
project is located in Illinois.
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| The penalty shall not exceed $1,000 for each day of work | 35 |
| for which
the employer failed to make payments upon the premium | 36 |
| rates of the situs where
the
work or project is located in |
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| Illinois, but the total penalty shall not exceed
$50,000 for | 2 |
| each project or each contract under which the work was
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| performed.
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| Any penalty under this subsection (a-1) must be imposed not | 5 |
| later
than one year after the expiration of the applicable | 6 |
| limitation period
specified in subsection (d) of Section 6 of | 7 |
| this Act. Penalties imposed under
this subsection (a-1) shall | 8 |
| be deposited into the Industrial Commission
Operations Fund, a | 9 |
| special fund that is created in the State treasury. Subject
to | 10 |
| appropriation, moneys in the Fund shall be used solely for the | 11 |
| operations
of the Industrial Commission.
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| (b) The sworn application and financial statement, or | 13 |
| security,
indemnity or bond, or amount of insurance, or other | 14 |
| provisions, filed,
furnished, carried, or made by the employer, | 15 |
| as the case may be, shall
be subject to the approval of the | 16 |
| Commission.
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| Deposits under escrow agreements shall be cash, negotiable | 18 |
| United
States government bonds or negotiable general | 19 |
| obligation bonds of the
State of Illinois. Such cash or bonds | 20 |
| shall be deposited in
escrow with any State or National Bank or | 21 |
| Trust Company having trust
authority in the State of Illinois.
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| Upon the approval of the sworn application and financial | 23 |
| statement,
security, indemnity or bond or amount of insurance, | 24 |
| filed, furnished or
carried, as the case may be, the Commission | 25 |
| shall send to the employer
written notice of its approval | 26 |
| thereof. The certificate of compliance
by the employer with the | 27 |
| provisions of subparagraphs (2) and (3) of
paragraph (a) of | 28 |
| this Section shall be delivered by the insurance
carrier to the | 29 |
| Industrial Commission within five days after the
effective date | 30 |
| of the policy so certified. The insurance so certified
shall | 31 |
| cover all compensation liability occurring during the time that
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| the insurance is in effect and no further certificate need be | 33 |
| filed in case
such insurance is renewed, extended or otherwise | 34 |
| continued by such
carrier. The insurance so certified shall not | 35 |
| be cancelled or in the
event that such insurance is not | 36 |
| renewed, extended or otherwise
continued, such insurance shall |
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| not be terminated until at least 10
days after receipt by the | 2 |
| Industrial Commission of notice of the
cancellation or | 3 |
| termination of said insurance; provided, however, that
if the | 4 |
| employer has secured insurance from another insurance carrier, | 5 |
| or
has otherwise secured the payment of compensation in | 6 |
| accordance with
this Section, and such insurance or other | 7 |
| security becomes effective
prior to the expiration of the 10 | 8 |
| days, cancellation or termination may, at
the option of the | 9 |
| insurance carrier indicated in such notice, be effective
as of | 10 |
| the effective date of such other insurance or security.
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| (c) Whenever the Commission shall find that any | 12 |
| corporation,
company, association, aggregation of individuals, | 13 |
| reciprocal or
interinsurers exchange, or other insurer | 14 |
| effecting workers' compensation
insurance in this State shall | 15 |
| be insolvent, financially unsound, or
unable to fully meet all | 16 |
| payments and liabilities assumed or to be
assumed for | 17 |
| compensation insurance in this State, or shall practice a
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| policy of delay or unfairness toward employees in the | 19 |
| adjustment,
settlement, or payment of benefits due such | 20 |
| employees, the Commission
may after reasonable notice and | 21 |
| hearing order and direct that such
corporation, company, | 22 |
| association, aggregation of individuals,
reciprocal or | 23 |
| interinsurers exchange, or insurer, shall from and after a
date | 24 |
| fixed in such order discontinue the writing of any such | 25 |
| workers'
compensation insurance in this State. Subject to such | 26 |
| modification of
the order as the Commission may later make on | 27 |
| review of the order,
as herein provided, it shall thereupon be | 28 |
| unlawful for any such
corporation, company, association, | 29 |
| aggregation of individuals,
reciprocal or interinsurers | 30 |
| exchange, or insurer to effect any workers'
compensation | 31 |
| insurance in this State. A copy of the order shall be served
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| upon the Director of Insurance by registered mail. Whenever the | 33 |
| Commission
finds that any service or adjustment company used or | 34 |
| employed
by a self-insured employer or by an insurance carrier | 35 |
| to process,
adjust, investigate, compromise or otherwise | 36 |
| handle claims under this
Act, has practiced or is practicing a |
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| policy of delay or unfairness
toward employees in the | 2 |
| adjustment, settlement or payment of benefits
due such | 3 |
| employees, the Commission may after reasonable notice and
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| hearing order and direct that such service or adjustment | 5 |
| company shall
from and after a date fixed in such order be | 6 |
| prohibited from processing,
adjusting, investigating, | 7 |
| compromising or otherwise handling claims
under this Act.
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| Whenever the Commission finds that any self-insured | 9 |
| employer has
practiced or is practicing delay or unfairness | 10 |
| toward employees in the
adjustment, settlement or payment of | 11 |
| benefits due such employees, the
Commission may, after | 12 |
| reasonable notice and hearing, order and direct
that after a | 13 |
| date fixed in the order such self-insured employer shall be
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| disqualified to operate as a self-insurer and shall be required | 15 |
| to
insure his entire liability to pay compensation in some | 16 |
| insurance
carrier authorized, licensed and permitted to do such | 17 |
| insurance business
in this State, as provided in subparagraph 3 | 18 |
| of paragraph (a) of this
Section.
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| All orders made by the Commission under this Section shall | 20 |
| be subject
to review by the courts, said review to be taken in | 21 |
| the same manner and
within the same time as provided by Section | 22 |
| 19 of this Act for review of
awards and decisions of the | 23 |
| Commission, upon the party seeking the
review filing with the | 24 |
| clerk of the court to which said review is taken
a bond in an | 25 |
| amount to be fixed and approved by the court to which the
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| review is taken, conditioned upon the payment of all | 27 |
| compensation awarded
against the person taking said review | 28 |
| pending a decision thereof and
further conditioned upon such | 29 |
| other obligations as the court may impose.
Upon the review the | 30 |
| Circuit Court shall have power to review all questions
of fact | 31 |
| as well as of law. The penalty hereinafter provided for in this
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| paragraph shall not attach and shall not begin to run until the | 33 |
| final
determination of the order of the Commission.
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| (d) Upon a finding by the Commission, after reasonable | 35 |
| notice and
hearing, of the knowing and wilful failure or | 36 |
| refusal of an employer to
comply with
any of the provisions of |
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| paragraph (a) of this Section or the failure or
refusal of an | 2 |
| employer, service or adjustment company, or an insurance
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| carrier to comply with any order of the Industrial Commission | 4 |
| pursuant to
paragraph (c) of this Section disqualifying him or | 5 |
| her to operate as a self
insurer and requiring him or her to | 6 |
| insure his or her liability, the
Commission may assess a civil | 7 |
| penalty of up to $500 per day for each day of
such failure or | 8 |
| refusal after the effective date of this amendatory Act of
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| 1989. The minimum penalty under this Section shall be the sum | 10 |
| of $10,000.
Each day of such failure or refusal shall | 11 |
| constitute a separate offense.
The Commission may assess the | 12 |
| civil penalty personally and individually
against the | 13 |
| corporate officers and directors of a corporate employer, the
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| partners of an employer partnership, and the members of an | 15 |
| employer limited
liability company, after a finding of a | 16 |
| knowing and willful refusal or failure
of each such named | 17 |
| corporate officer, director, partner, or member to comply
with | 18 |
| this Section. The liability for the assessed penalty shall be
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| against the named employer first, and
if the named employer | 20 |
| fails or refuses to pay the penalty to the
Commission within 30 | 21 |
| days after the final order of the Commission, then the
named
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| corporate officers, directors, partners, or members who have | 23 |
| been found to have
knowingly and willfully refused or failed to | 24 |
| comply with this Section shall be
liable for the unpaid penalty | 25 |
| or any unpaid portion of the penalty. All
penalties collected | 26 |
| under
this Section shall be deposited in the Industrial | 27 |
| Commission Operations Fund.
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| Upon the failure or refusal of any employer, service or | 29 |
| adjustment
company or insurance carrier to comply with the | 30 |
| provisions of this Section
and with the orders of the | 31 |
| Commission under this Section, or the order of
the court on | 32 |
| review after final adjudication, the Commission may bring a
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| civil action to recover the amount of the penalty in Cook | 34 |
| County or in
Sangamon County in which litigation the Commission | 35 |
| shall be represented by
the Attorney General. The Commission | 36 |
| shall send notice of its finding of
non-compliance and |
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| assessment of the civil penalty to the Attorney General.
It | 2 |
| shall be the duty of the Attorney General within 30 days after | 3 |
| receipt
of the notice, to institute prosecutions and promptly | 4 |
| prosecute all
reported violations of this Section.
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| (e) This Act shall not affect or disturb the continuance of | 6 |
| any
existing insurance, mutual aid, benefit, or relief | 7 |
| association or
department, whether maintained in whole or in | 8 |
| part by the employer or
whether maintained by the employees, | 9 |
| the payment of benefits of such
association or department being | 10 |
| guaranteed by the employer or by some
person, firm or | 11 |
| corporation for him or her: Provided, the employer contributes
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| to such association or department an amount not less than the | 13 |
| full
compensation herein provided, exclusive of the cost of the | 14 |
| maintenance
of such association or department and without any | 15 |
| expense to the
employee. This Act shall not prevent the | 16 |
| organization and maintaining
under the insurance laws of this | 17 |
| State of any benefit or insurance
company for the purpose of | 18 |
| insuring against the compensation provided
for in this Act, the | 19 |
| expense of which is maintained by the employer.
This Act shall | 20 |
| not prevent the organization or maintaining under the
insurance | 21 |
| laws of this State of any voluntary mutual aid, benefit or
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| relief association among employees for the payment of | 23 |
| additional
accident or sick benefits.
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| (f) No existing insurance, mutual aid, benefit or relief | 25 |
| association
or department shall, by reason of anything herein | 26 |
| contained, be
authorized to discontinue its operation without | 27 |
| first discharging its
obligations to any and all persons | 28 |
| carrying insurance in the same or
entitled to relief or | 29 |
| benefits therein.
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| (g) Any contract, oral, written or implied, of employment | 31 |
| providing
for relief benefit, or insurance or any other device | 32 |
| whereby the
employee is required to pay any premium or premiums | 33 |
| for insurance
against the compensation provided for in this Act | 34 |
| shall be null and
void. Any employer withholding from the wages | 35 |
| of any employee any
amount for the purpose of paying any such | 36 |
| premium shall be guilty of a
Class B misdemeanor.
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| In the event the employer does not pay the compensation for | 2 |
| which he or
she is liable, then an insurance company, | 3 |
| association or insurer which may
have insured such employer | 4 |
| against such liability shall become primarily
liable to pay to | 5 |
| the employee, his or her personal representative or
beneficiary | 6 |
| the compensation required by the provisions of this Act to
be | 7 |
| paid by such employer. The insurance carrier may be made a | 8 |
| party to
the proceedings in which the employer is a party and | 9 |
| an award may be
entered jointly against the employer and the | 10 |
| insurance carrier.
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| (h) It shall be unlawful for any employer, insurance | 12 |
| company or
service or adjustment company to interfere with, | 13 |
| restrain or coerce an
employee in any manner whatsoever in the | 14 |
| exercise of the rights or
remedies granted to him or her by | 15 |
| this Act or to discriminate, attempt to
discriminate, or | 16 |
| threaten to discriminate against an employee in any way
because | 17 |
| of his or her exercise of the rights or remedies granted to
him | 18 |
| or her by this Act.
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| It shall be unlawful for any employer, individually or | 20 |
| through any
insurance company or service or adjustment company, | 21 |
| to discharge or to
threaten to discharge, or to refuse to | 22 |
| rehire or recall to active
service in a suitable capacity an | 23 |
| employee because of the exercise of
his or her rights or | 24 |
| remedies granted to him or her by this Act.
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| (i) If an employer elects to obtain a life insurance policy | 26 |
| on his
employees, he may also elect to apply such benefits in | 27 |
| satisfaction of all
or a portion of the death benefits payable | 28 |
| under this Act, in which case,
the employer's compensation | 29 |
| premium shall be reduced accordingly.
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| (j) Within 45 days of receipt of an initial application or | 31 |
| application
to renew self-insurance privileges the | 32 |
| Self-Insurers Advisory Board shall
review and submit for | 33 |
| approval by the Chairman of the Commission
recommendations of | 34 |
| disposition of all initial applications to self-insure
and all | 35 |
| applications to renew self-insurance privileges filed by | 36 |
| private
self-insurers pursuant to the provisions of this |
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| Section and Section 4a-9
of this Act. Each private self-insurer | 2 |
| shall submit with its initial and
renewal applications the | 3 |
| application fee required by Section 4a-4 of this Act.
| 4 |
| The Chairman of the Commission shall promptly act upon all | 5 |
| initial
applications and applications for renewal in full | 6 |
| accordance with the
recommendations of the Board or, should the | 7 |
| Chairman disagree with any
recommendation of disposition of the | 8 |
| Self-Insurer's Advisory Board, he
shall within 30 days of | 9 |
| receipt of such recommendation provide to the Board
in writing | 10 |
| the reasons supporting his decision. The Chairman shall also
| 11 |
| promptly notify the employer of his decision within 15 days of | 12 |
| receipt of
the recommendation of the Board.
| 13 |
| If an employer is denied a renewal of self-insurance | 14 |
| privileges pursuant
to application it shall retain said | 15 |
| privilege for 120 days after receipt of
a notice of | 16 |
| cancellation of the privilege from the Chairman of the | 17 |
| Commission.
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| All orders made by the Chairman under this Section shall be | 19 |
| subject to
review by the courts, such review to be taken in the | 20 |
| same manner and within
the same time as provided by subsection | 21 |
| (f) of Section 19 of this Act for
review of awards and | 22 |
| decisions of the Commission, upon the party seeking
the review | 23 |
| filing with the clerk of the court to which such review is | 24 |
| taken
a bond in an amount to be fixed and approved by the court | 25 |
| to which the
review is taken, conditioned upon the payment of | 26 |
| all compensation awarded
against the person taking such review | 27 |
| pending a decision thereof and
further conditioned upon such | 28 |
| other obligations as the court may impose.
Upon the review the | 29 |
| Circuit Court shall have power to review all questions
of fact | 30 |
| as well as of law.
| 31 |
| (Source: P.A. 91-375, eff. 1-1-00; 91-757, eff. 1-1-01; 92-324, | 32 |
| eff.
8-9-01.)
| 33 |
| Section 10. The Workers' Occupational Diseases Act is | 34 |
| amended by changing Section 4 as follows:
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| (820 ILCS 310/4) (from Ch. 48, par. 172.39)
| 2 |
| Sec. 4. (a) Any employer, including but not limited to | 3 |
| general contractors
and their subcontractors, required by the | 4 |
| terms of this Act or by
election to pay the compensation | 5 |
| provided for in this Act shall:
| 6 |
| (1) File with the Commission an application for | 7 |
| approval as a
self-insurer which shall include a current | 8 |
| financial statement. The
application and financial | 9 |
| statement shall be signed and sworn to by the
president or | 10 |
| vice-president and secretary or assistant secretary of the
| 11 |
| employer if it be a corporation, or by all of the partners | 12 |
| if it be a
copartnership, or by the owner if it be neither | 13 |
| a copartnership nor a
corporation. An employer may elect to | 14 |
| provide and pay compensation as
provided
for in this Act as | 15 |
| a member of a group workers' compensation pool under
| 16 |
| Article V 3/4 of the Illinois Insurance Code. If an | 17 |
| employer becomes a member
of a group workers' compensation | 18 |
| pool, the employer shall not be relieved of
any obligations | 19 |
| imposed by this Act. A person who knowingly provides false | 20 |
| information on an initial or renewal self-insurance | 21 |
| application or accompanying financial statement is guilty | 22 |
| of a business offense for which a fine not to exceed | 23 |
| $50,000 may be imposed.
| 24 |
| If the sworn application and financial statement of any | 25 |
| such employer
does not satisfy the Commission of the | 26 |
| financial ability of the employer
who has filed it, the | 27 |
| Commission shall require such employer to:
| 28 |
| (2) Furnish security, indemnity or a bond guaranteeing | 29 |
| the payment
by the employer of the compensation provided | 30 |
| for in this Act, provided
that any such employer who shall | 31 |
| have secured his or her liability in
part by excess | 32 |
| liability coverage shall be required to furnish to the
| 33 |
| Commission security, indemnity or bond guaranteeing his or | 34 |
| her payment up
to the amount of the effective limits of the | 35 |
| excess coverage in accordance
with the provisions of this | 36 |
| paragraph, or
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| (3) Insure his or her entire liability to pay such | 2 |
| compensation in some
insurance carrier authorized, | 3 |
| licensed or permitted to do such insurance
business in this | 4 |
| State. All policies of such insurance carriers
insuring the | 5 |
| payment of compensation under this Act shall cover all the
| 6 |
| employees and all such employer's compensation liability | 7 |
| in all cases in
which the last day of the last exposure to | 8 |
| the occupational disease
involved is within the effective | 9 |
| period of the policy, anything to the
contrary in the | 10 |
| policy notwithstanding. Provided, however, that any
| 11 |
| employer may insure his or her compensation liability under | 12 |
| this Act
with 2 or more insurance carriers or may insure a | 13 |
| part and qualify under
Subsection 1, 2, or 4 for the | 14 |
| remainder of his liability to pay such
compensation, | 15 |
| subject to the following two provisions:
| 16 |
| Firstly, the entire liability of the employer to | 17 |
| employees working at
or from one location shall be | 18 |
| insured in one such insurance carrier or
shall be | 19 |
| self-insured.
| 20 |
| Secondly, the employer shall submit evidence | 21 |
| satisfactory to the
Commission that his or her entire | 22 |
| liability for the compensation provided
for in this Act | 23 |
| will be secured.
| 24 |
| Any provision in a policy or in any endorsement | 25 |
| attached thereto
attempting to limit or modify in any way | 26 |
| the liability of the insurance
carrier issuing the same, | 27 |
| except as otherwise provided herein, shall be
wholly void.
| 28 |
| The insurance or security in force to cover | 29 |
| compensation liability
under this Act shall be separate and | 30 |
| distinct from the insurance or
security under the "Workers' | 31 |
| Compensation Act" and any insurance
contract covering | 32 |
| liability under either Act need not cover any
liability | 33 |
| under the other. Nothing herein contained shall apply to
| 34 |
| policies of excess liability carriage secured by employers | 35 |
| who have been
approved by the Commission as self-insurers, | 36 |
| or
|
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| (4) Make some other provision, satisfactory to the | 2 |
| Commission, for
the securing of the payment of compensation | 3 |
| provided for in this Act,
and
| 4 |
| (5) Upon becoming subject to this Act and thereafter as | 5 |
| often as the
Commission may in writing demand, file with | 6 |
| the Commission in form
prescribed by it evidence of his or | 7 |
| her compliance with the provision
of this Section.
| 8 |
| (a-1) Regardless of its state of domicile or its principal | 9 |
| place of
business, an employer shall make payments to its | 10 |
| insurance carrier or group
self-insurance fund, where | 11 |
| applicable, based upon the premium rates of the
situs where the | 12 |
| work or project is located in Illinois if:
| 13 |
| (A) the employer is engaged primarily in the building | 14 |
| and
construction industry; and
| 15 |
| (B) subdivision (a)(3) of this Section applies to the | 16 |
| employer or
the employer is a member of a group | 17 |
| self-insurance plan as defined in
subsection (1) of Section | 18 |
| 4a.
| 19 |
| The Industrial Commission shall impose a penalty upon an | 20 |
| employer
for violation of this subsection (a-1) if:
| 21 |
| (i) the employer is given an opportunity at a hearing | 22 |
| to present
evidence of its compliance with this subsection | 23 |
| (a-1); and
| 24 |
| (ii) after the hearing, the Commission finds that the | 25 |
| employer
failed to make payments upon the premium rates of | 26 |
| the situs where the work or
project is located in Illinois.
| 27 |
| The penalty shall not exceed $1,000 for each day of work | 28 |
| for which
the employer failed to make payments upon the premium | 29 |
| rates of the situs where
the
work or project is located in | 30 |
| Illinois, but the total penalty shall not exceed
$50,000 for | 31 |
| each project or each contract under which the work was
| 32 |
| performed.
| 33 |
| Any penalty under
this subsection (a-1) must be imposed not | 34 |
| later than one year after the
expiration of the applicable | 35 |
| limitation period specified in subsection (c) of
Section 6 of | 36 |
| this Act. Penalties imposed under this subsection (a-1) shall |
|
|
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| be
deposited into the Industrial Commission Operations Fund | 2 |
| created under Section
4 of the Workers' Compensation Act.
| 3 |
| (b) The sworn application and financial statement, or | 4 |
| security,
indemnity or bond, or amount of insurance, or other | 5 |
| provisions, filed,
furnished, carried, or made by the employer, | 6 |
| as the case may be, shall
be subject to the approval of the | 7 |
| Commission.
| 8 |
| Deposits under escrow agreements shall be cash, negotiable | 9 |
| United
States government bonds or negotiable general | 10 |
| obligation bonds of the
State of Illinois. Such cash or bonds | 11 |
| shall be deposited in escrow with
any State or National Bank or | 12 |
| Trust Company having trust authority in
the State of Illinois.
| 13 |
| Upon the approval of the sworn application and financial | 14 |
| statement,
security, indemnity or bond or amount of insurance, | 15 |
| filed, furnished, or
carried, as the case may be, the | 16 |
| Commission shall send to the employer
written notice of its | 17 |
| approval thereof. Said certificate of compliance
by the | 18 |
| employer with the provisions of subparagraphs (2) and (3) of
| 19 |
| paragraph (a) of this Section shall be delivered by the | 20 |
| insurance
carrier to the Industrial Commission within 5 days | 21 |
| after the effective
date of the policy so certified. The | 22 |
| insurance so certified shall cover
all compensation liability | 23 |
| occurring during the time that the
insurance is in effect and | 24 |
| no further certificate need be filed in case such
insurance is | 25 |
| renewed, extended or otherwise continued by such carrier.
The | 26 |
| insurance so certified shall not be cancelled or in the event | 27 |
| that
such insurance is not renewed, extended or otherwise | 28 |
| continued, such
insurance shall not be terminated until at | 29 |
| least 10 days after receipt
by the Industrial Commission of | 30 |
| notice of the cancellation or
termination of said insurance; | 31 |
| provided, however, that if the employer
has secured insurance | 32 |
| from another insurance carrier, or has otherwise
secured the | 33 |
| payment of compensation in accordance with this Section, and
| 34 |
| such insurance or other security becomes effective prior to the
| 35 |
| expiration of said 10 days, cancellation or termination may, at | 36 |
| the
option of the insurance carrier indicated in such notice, |
|
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| be effective
as of the effective date of such other insurance | 2 |
| or security.
| 3 |
| (c) Whenever the Commission shall find that any | 4 |
| corporation,
company, association, aggregation of individuals, | 5 |
| reciprocal or
interinsurers exchange, or other insurer | 6 |
| effecting workers' occupational
disease compensation insurance | 7 |
| in this State shall be insolvent,
financially unsound, or | 8 |
| unable to fully meet all payments and
liabilities assumed or to | 9 |
| be assumed for compensation insurance in this
State, or shall | 10 |
| practice a policy of delay or unfairness toward
employees in | 11 |
| the adjustment, settlement, or payment of benefits due such
| 12 |
| employees, the Commission may after reasonable notice and | 13 |
| hearing order
and direct that such corporation, company, | 14 |
| association, aggregation of
individuals, reciprocal or | 15 |
| interinsurers exchange, or insurer, shall
from and after a date | 16 |
| fixed in such order discontinue the writing of any
such | 17 |
| workers' occupational disease compensation insurance in this | 18 |
| State.
It shall thereupon be unlawful for any such corporation, | 19 |
| company,
association, aggregation of individuals, reciprocal | 20 |
| or interinsurers
exchange, or insurer to effect any workers' | 21 |
| occupational disease
compensation insurance in this State. A | 22 |
| copy of the order shall be served
upon the Director of | 23 |
| Insurance by registered mail. Whenever the
Commission finds | 24 |
| that any service or adjustment company used or employed
by a | 25 |
| self-insured employer or by an insurance carrier to process,
| 26 |
| adjust, investigate, compromise or otherwise handle claims | 27 |
| under this
Act, has practiced or is practicing a policy of | 28 |
| delay or unfairness
toward employees in the adjustment, | 29 |
| settlement or payment of benefits
due such employees, the | 30 |
| Commission may after reasonable notice and
hearing order and | 31 |
| direct that such service or adjustment company shall
from and | 32 |
| after a date fixed in such order be prohibited from processing,
| 33 |
| adjusting, investigating, compromising or otherwise handling | 34 |
| claims
under this Act.
| 35 |
| Whenever the Commission finds that any self-insured | 36 |
| employer has
practiced or is practicing delay or unfairness |
|
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| toward employees in the
adjustment, settlement or payment of | 2 |
| benefits due such employees, the
Commission may after | 3 |
| reasonable notice and hearing order and direct that
after a | 4 |
| date fixed in the order such self-insured employer shall be
| 5 |
| disqualified to operate as a self-insurer and shall be required | 6 |
| to
insure his entire liability to pay compensation in some | 7 |
| insurance
carrier authorized, licensed and permitted to do such | 8 |
| insurance business
in this State as provided in subparagraph | 9 |
| (3) of paragraph (a) of this
Section.
| 10 |
| All orders made by the Commission under this Section shall | 11 |
| be subject
to review by the courts, the review to be taken in | 12 |
| the same manner and
within the same time as provided by Section | 13 |
| 19 of this Act for review of
awards and decisions of the | 14 |
| Commission, upon the party seeking the
review filing with the | 15 |
| clerk of the court to which said review is taken
a bond in an | 16 |
| amount to be fixed and approved by the court
to which said | 17 |
| review is taken, conditioned upon the payment of all
| 18 |
| compensation awarded against the person taking the review | 19 |
| pending a
decision thereof and further conditioned upon such | 20 |
| other obligations as the
court may impose. Upon the review the | 21 |
| Circuit Court shall have
power to review all questions of fact | 22 |
| as well as of law. The penalty
hereinafter provided for in this | 23 |
| paragraph shall not attach and shall
not begin to run until the | 24 |
| final determination of the order of the
Commission.
| 25 |
| (d) Upon a finding by the Commission, after reasonable | 26 |
| notice and
hearing, of the knowing and wilful failure of an | 27 |
| employer to comply with
any of the provisions of paragraph (a) | 28 |
| of this Section or the failure or
refusal of an employer, | 29 |
| service or adjustment company, or insurance carrier
to comply | 30 |
| with any order of the Industrial Commission pursuant to | 31 |
| paragraph
(c) of this Section the Commission may assess a civil | 32 |
| penalty of up to $500
per day for each day of such failure or | 33 |
| refusal after the effective date of
this amendatory Act of | 34 |
| 1989. Each day of such failure or refusal shall
constitute a | 35 |
| separate offense.
| 36 |
| Upon the failure or refusal of any employer, service or |
|
|
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| adjustment
company or insurance carrier to comply with the | 2 |
| provisions of this Section
and orders of the Commission under | 3 |
| this Section, or the order of the court
on review after final | 4 |
| adjudication, the Commission may bring a civil action
to | 5 |
| recover the amount of the penalty in Cook County or in Sangamon | 6 |
| County
in which litigation the Commission shall be represented | 7 |
| by the Attorney
General. The Commission shall send notice of | 8 |
| its finding of non-compliance
and assessment of the civil | 9 |
| penalty to the Attorney General. It
shall be the duty of the | 10 |
| Attorney General within 30 days after
receipt of the notice, to | 11 |
| institute prosecutions and promptly
prosecute all reported | 12 |
| violations of this Section.
| 13 |
| (e) This Act shall not affect or disturb the continuance of | 14 |
| any
existing insurance, mutual aid, benefit, or relief | 15 |
| association or
department, whether maintained in whole or in | 16 |
| part by the employer or
whether maintained by the employees, | 17 |
| the payment of benefits of such
association or department being | 18 |
| guaranteed by the employer or by some
person, firm or | 19 |
| corporation for him or her: Provided, the employer contributes
| 20 |
| to such association or department an amount not less than the | 21 |
| full
compensation herein provided, exclusive of the cost of the | 22 |
| maintenance
of such association or department and without any | 23 |
| expense to the
employee. This Act shall not prevent the | 24 |
| organization and maintaining
under the insurance laws of this | 25 |
| State of any benefit or insurance
company for the purpose of | 26 |
| insuring against the compensation provided
for in this Act, the | 27 |
| expense of which is maintained by the employer.
This Act shall | 28 |
| not prevent the organization or maintaining under the
insurance | 29 |
| laws of this State of any voluntary mutual aid, benefit or
| 30 |
| relief association among employees for the payment of | 31 |
| additional
accident or sick benefits.
| 32 |
| (f) No existing insurance, mutual aid, benefit or relief | 33 |
| association
or department shall, by reason of anything herein | 34 |
| contained, be
authorized to discontinue its operation without | 35 |
| first discharging its
obligations to any and all persons | 36 |
| carrying insurance in the same or
entitled to relief or |
|
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| benefits therein.
| 2 |
| (g) Any contract, oral, written or implied, of employment | 3 |
| providing
for relief benefit, or insurance or any other device | 4 |
| whereby the
employee is required to pay any premium or premiums | 5 |
| for insurance
against the compensation provided for in this Act | 6 |
| shall be null and
void. Any employer withholding from the wages | 7 |
| of any employee any
amount for the purpose of paying any such | 8 |
| premium shall be guilty of a
Class B misdemeanor.
| 9 |
| In the event the employer does not pay the compensation for | 10 |
| which he or
she is liable, then an insurance company, | 11 |
| association or insurer which may
have insured such employer | 12 |
| against such liability shall become primarily
liable to pay to | 13 |
| the employee, his personal representative or
beneficiary the | 14 |
| compensation required by the provisions of this Act to
be paid | 15 |
| by such employer. The insurance carrier may be made a party to
| 16 |
| the proceedings in which the employer is a party and an award | 17 |
| may be
entered jointly against the employer and the insurance | 18 |
| carrier.
| 19 |
| (h) It shall be unlawful for any employer, insurance | 20 |
| company or
service or adjustment company to interfere with, | 21 |
| restrain or coerce an
employee in any manner whatsoever in the | 22 |
| exercise of the rights or
remedies granted to him or her by | 23 |
| this Act or to discriminate, attempt to
discriminate, or | 24 |
| threaten to discriminate against an employee in any way
because | 25 |
| of his exercise of the rights or remedies granted to him by | 26 |
| this
Act.
| 27 |
| It shall be unlawful for any employer, individually or | 28 |
| through any
insurance company or service or adjustment company, | 29 |
| to discharge or to
threaten to discharge, or to refuse to | 30 |
| rehire or recall to active
service in a suitable capacity an | 31 |
| employee because of the exercise of
his or her rights or | 32 |
| remedies granted to him or her by this Act.
| 33 |
| (i) If an employer elects to obtain a life insurance policy | 34 |
| on his
employees, he may also elect to apply such benefits in | 35 |
| satisfaction of all
or a portion of the death benefits payable | 36 |
| under this Act, in which case,
the employer's premium for |
|
|
|
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| 1 |
| coverage for benefits under this Act shall be
reduced | 2 |
| accordingly.
| 3 |
| (Source: P.A. 90-109, eff. 1-1-98; 91-375, eff. 1-1-00; 91-757, | 4 |
| eff. 1-1-01.)
| 5 |
| Section 99. Effective date. This Act takes effect upon | 6 |
| becoming law.
|
|