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90_HB0817
820 ILCS 305/7 from Ch. 48, par. 138.7
Amends the Workers' Compensation Act. In provisions
authorizing the Industrial Commission to impose a penalty
against an employer for failure to pay the proper amounts in
the Second Injury Fund or the Rate Adjustment Fund,
eliminates a requirement that the failure to pay be willful
and knowing. Provides that interest shall be paid by an
employer who has failed to pay the proper amounts in the
Second Injury Fund or the Rate Adjustment Fund. Provides
for the disposition of penalties and interest.
LRB9001471WHmgA
LRB9001471WHmgA
1 AN ACT to amend the Workers' Compensation Act by changing
2 Section 7.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Workers' Compensation Act is amended by
6 changing Section 7 as follows:
7 (820 ILCS 305/7) (from Ch. 48, par. 138.7)
8 Sec. 7. The amount of compensation which shall be paid
9 for an accidental injury to the employee resulting in death
10 is:
11 (a) If the employee leaves surviving a widow, widower,
12 child or children, the applicable weekly compensation rate
13 computed in accordance with subparagraph 2 of paragraph (b)
14 of Section 8, shall be payable during the life of the widow
15 or widower and if any surviving child or children shall not
16 be physically or mentally incapacitated then until the death
17 of the widow or widower or until the youngest child shall
18 reach the age of 18, whichever shall come later; provided
19 that if such child or children shall be enrolled as a full
20 time student in any accredited educational institution, the
21 payments shall continue until such child has attained the age
22 of 25. In the event any surviving child or children shall be
23 physically or mentally incapacitated, the payments shall
24 continue for the duration of such incapacity.
25 The term "child" means a child whom the deceased employee
26 left surviving, including a posthumous child, a child legally
27 adopted, a child whom the deceased employee was legally
28 obligated to support or a child to whom the deceased employee
29 stood in loco parentis. The term "children" means the plural
30 of "child".
31 The term "physically or mentally incapacitated child or
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1 children" means a child or children incapable of engaging in
2 regular and substantial gainful employment.
3 In the event of the remarriage of a widow or widower,
4 where the decedent did not leave surviving any child or
5 children who, at the time of such remarriage, are entitled to
6 compensation benefits under this Act, the surviving spouse
7 shall be paid a lump sum equal to 2 years compensation
8 benefits and all further rights of such widow or widower
9 shall be extinguished.
10 If the employee leaves surviving any child or children
11 under 18 years of age who at the time of death shall be
12 entitled to compensation under this paragraph (a) of this
13 Section, the weekly compensation payments herein provided for
14 such child or children shall in any event continue for a
15 period of not less than 6 years.
16 Any beneficiary entitled to compensation under this
17 paragraph (a) of this Section shall receive from the special
18 fund provided in paragraph (f) of this Section, in addition
19 to the compensation herein provided, supplemental benefits in
20 accordance with paragraph (g) of Section 8.
21 (b) If no compensation is payable under paragraph (a) of
22 this Section and the employee leaves surviving a parent or
23 parents who at the time of the accident were totally
24 dependent upon the earnings of the employee then weekly
25 payments equal to the compensation rate payable in the case
26 where the employee leaves surviving a widow or widower, shall
27 be paid to such parent or parents for the duration of their
28 lives, and in the event of the death of either, for the life
29 of the survivor.
30 (c) If no compensation is payable under paragraphs (a)
31 or (b) of this Section and the employee leaves surviving any
32 child or children who are not entitled to compensation under
33 the foregoing paragraph (a) but who at the time of the
34 accident were nevertheless in any manner dependent upon the
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1 earnings of the employee, or leaves surviving a parent or
2 parents who at the time of the accident were partially
3 dependent upon the earnings of the employee, then there shall
4 be paid to such dependent or dependents for a period of 8
5 years weekly compensation payments at such proportion of the
6 applicable rate if the employee had left surviving a widow or
7 widower as such dependency bears to total dependency. In the
8 event of the death of any such beneficiary the share of such
9 beneficiary shall be divided equally among the surviving
10 beneficiaries and in the event of the death of the last such
11 beneficiary all the rights under this paragraph shall be
12 extinguished.
13 (d) If no compensation is payable under paragraphs (a),
14 (b) or (c) of this Section and the employee leaves surviving
15 any grandparent, grandparents, grandchild or grandchildren or
16 collateral heirs dependent upon the employee's earnings to
17 the extent of 50% or more of total dependency, then there
18 shall be paid to such dependent or dependents for a period of
19 5 years weekly compensation payments at such proportion of
20 the applicable rate if the employee had left surviving a
21 widow or widower as such dependency bears to total
22 dependency. In the event of the death of any such
23 beneficiary the share of such beneficiary shall be divided
24 equally among the surviving beneficiaries and in the event of
25 the death of the last such beneficiary all rights hereunder
26 shall be extinguished.
27 (e) The compensation to be paid for accidental injury
28 which results in death, as provided in this Section, shall be
29 paid to the persons who form the basis for determining the
30 amount of compensation to be paid by the employer, the
31 respective shares to be in the proportion of their respective
32 dependency at the time of the accident on the earnings of the
33 deceased. The Commission or an Arbitrator thereof may, in
34 its or his discretion, order or award the payment to the
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1 parent or grandparent of a child for the latter's support the
2 amount of compensation which but for such order or award
3 would have been paid to such child as its share of the
4 compensation payable, which order or award may be modified
5 from time to time by the Commission in its discretion with
6 respect to the person to whom shall be paid the amount of the
7 order or award remaining unpaid at the time of the
8 modification.
9 The payments of compensation by the employer in
10 accordance with the order or award of the Commission
11 discharges such employer from all further obligation as to
12 such compensation.
13 (f) The sum of $4200 for burial expenses shall be paid
14 by the employer to the widow or widower, other dependent,
15 next of kin or to the person or persons incurring the expense
16 of burial.
17 In the event the employer failed to provide necessary
18 first aid, medical, surgical or hospital service, he shall
19 pay the cost thereof to the person or persons entitled to
20 compensation under paragraphs (a), (b), (c) or (d) of this
21 Section, or to the person or persons incurring the obligation
22 therefore, or providing the same.
23 On January 15 and July 15, 1981, and on January 15 and
24 July 15 of each year thereafter the employer shall within 60
25 days pay a sum equal to 1/8 of 1% of all compensation
26 payments made by him after July 1, 1980, either under this
27 Act or the Workers' Occupational Diseases Act, whether by
28 lump sum settlement or weekly compensation payments, but not
29 including hospital, surgical or rehabilitation payments, made
30 during the first 6 months and during the second 6 months
31 respectively of the fiscal year next preceding the date of
32 the payments, into a special fund which shall be designated
33 the "Second Injury Fund", of which the State Treasurer is
34 ex-officio custodian, such special fund to be held and
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1 disbursed for the purposes hereinafter stated in paragraphs
2 (f) and (g) of Section 8, either upon the order of the
3 Commission or of a competent court. Said special fund shall
4 be deposited the same as are State funds and any interest
5 accruing thereon shall be added thereto every 6 months. It
6 is subject to audit the same as State funds and accounts and
7 is protected by the General bond given by the State
8 Treasurer. It is considered always appropriated for the
9 purposes of disbursements as provided in Section 8, paragraph
10 (f), of this Act, and shall be paid out and disbursed as
11 therein provided and shall not at any time be appropriated or
12 diverted to any other use or purpose.
13 On January 15, 1991, the employer shall further pay a sum
14 equal to one half of 1% of all compensation payments made by
15 him from January 1, 1990 through June 30, 1990 either under
16 this Act or under the Workers' Occupational Diseases Act,
17 whether by lump sum settlement or weekly compensation
18 payments, but not including hospital, surgical or
19 rehabilitation payments, into an additional Special Fund
20 which shall be designated as the "Rate Adjustment Fund". On
21 March 15, 1991, the employer shall pay into the Rate
22 Adjustment Fund a sum equal to one half of 1% of all such
23 compensation payments made from July 1, 1990 through December
24 31, 1990. Within 60 days after July 15, 1991, the employer
25 shall pay into the Rate Adjustment Fund a sum equal to one
26 half of 1% of all such compensation payments made from
27 January 1, 1991 through June 30, 1991. Within 60 days after
28 January 15 of 1992 and each subsequent year through 1996, the
29 employer shall pay into the Rate Adjustment Fund a sum equal
30 to one half of 1% of all such compensation payments made in
31 the last 6 months of the preceding calendar year. Within 60
32 days after July 15 of 1992 and each subsequent year through
33 1995, the employer shall pay into the Rate Adjustment Fund a
34 sum equal to one half of 1% of all such compensation payments
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1 made in the first 6 months of the same calendar year. Within
2 60 days after January 15 of 1997 and each subsequent year,
3 the employer shall pay into the Rate Adjustment Fund a sum
4 equal to three-fourths of 1% of all such compensation
5 payments made in the last 6 months of the preceding calendar
6 year. Within 60 days after July 15 of 1996 and each
7 subsequent year, the employer shall pay into the Rate
8 Adjustment Fund a sum equal to three-fourths of 1% of all
9 such compensation payments made in the first 6 months of the
10 same calendar year. The administrative costs of collecting
11 assessments from employers for the Rate Adjustment Fund shall
12 be paid from the Rate Adjustment Fund. The cost of an
13 actuarial audit of the Fund shall be paid from the Rate
14 Adjustment Fund and the audit shall be completed no later
15 than July 1, 1997. The State Treasurer is ex officio
16 custodian of such Special Fund and the same shall be held and
17 disbursed for the purposes hereinafter stated in paragraphs
18 (f) and (g) of Section 8 upon the order of the Commission or
19 of a competent court. The Rate Adjustment Fund shall be
20 deposited the same as are State funds and any interest
21 accruing thereon shall be added thereto every 6 months. It
22 shall be subject to audit the same as State funds and
23 accounts and shall be protected by the general bond given by
24 the State Treasurer. It is considered always appropriated
25 for the purposes of disbursements as provided in paragraphs
26 (f) and (g) of Section 8 of this Act and shall be paid out
27 and disbursed as therein provided and shall not at any time
28 be appropriated or diverted to any other use or purpose.
29 Within 5 days after the effective date of this amendatory Act
30 of 1990, the Comptroller and the State Treasurer shall
31 transfer $1,000,000 from the General Revenue Fund to the Rate
32 Adjustment Fund. By February 15, 1991, the Comptroller and
33 the State Treasurer shall transfer $1,000,000 from the Rate
34 Adjustment Fund to the General Revenue Fund. From the
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1 effective date of this amendatory Act of 1993 to October 1,
2 1997, the Comptroller and Treasurer are authorized to make
3 transfers at the request of the Chairman up to a total of
4 $7,000,000 from the Second Injury Fund, the General Revenue
5 Fund, and the Workers' Compensation Benefit Trust Fund to the
6 Rate Adjustment Fund to the extent that there is insufficient
7 money in the Rate Adjustment Fund to pay claims and
8 obligations. Amounts may be transferred from the General
9 Revenue Fund only if the funds in the Second Injury Fund or
10 the Workers' Compensation Benefit Trust Fund are insufficient
11 to pay claims and obligations of the Rate Adjustment Fund.
12 All amounts transferred from the Second Injury Fund, the
13 General Revenue Fund, and the Workers' Compensation Benefit
14 Trust Fund shall be repaid from the Rate Adjustment Fund
15 within 270 days of a transfer, together with interest at the
16 rate earned by moneys on deposit in the Fund or Funds from
17 which the moneys were transferred.
18 Upon a finding by the Commission, after reasonable notice
19 and hearing, that any employer has willfully and knowingly
20 failed to pay the proper amounts into the Second Injury Fund
21 or the Rate Adjustment Fund required by this Section or if
22 such payments are not made within the time periods prescribed
23 by this Section, the employer shall, in addition to such
24 payments, pay a penalty of 20% of the amount required to be
25 paid or $2,500, whichever is greater, for each year or part
26 thereof of such failure to pay. This penalty shall only
27 apply to obligations of an employer to the Second Injury Fund
28 or the Rate Adjustment Fund accruing after the effective date
29 of this amendatory Act of 1989. All or part of such a penalty
30 may be waived by the Commission for good cause shown. The
31 employer shall also pay interest, at the rate set in Section
32 2-1303 of the Code of Civil Procedure for interest on
33 judgments, for the period during which the employer failed to
34 pay the proper amounts into the Second Injury Fund or the
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1 Rate Adjustment Fund. Penalties and interest for failure to
2 pay the proper amounts into the Second Injury Fund shall be
3 deposited into the Second Injury Fund. Penalties and
4 interest for failure to pay the proper amounts into the Rate
5 Adjustment Fund shall be deposited into the Rate Adjustment
6 Fund.
7 Any obligations of an employer to the Second Injury Fund
8 and Rate Adjustment Fund accruing prior to the effective date
9 of this amendatory Act of 1989 shall be paid in full by such
10 employer within 5 years of the effective date of this
11 amendatory Act of 1989, with at least one-fifth of such
12 obligation to be paid during each year following the
13 effective date of this amendatory Act of 1989. If the
14 Commission finds, following reasonable notice and hearing,
15 that an employer has failed to make timely payment of any
16 obligation accruing under the preceding sentence, the
17 employer shall, in addition to all other payments required by
18 this Section, be liable for a penalty equal to 20% of the
19 overdue obligation or $2,500, whichever is greater, for each
20 year or part thereof that obligation is overdue. All or part
21 of such a penalty may be waived by the Commission for good
22 cause shown.
23 The Chairman of the Industrial Commission shall,
24 annually, furnish to the Director of the Department of
25 Insurance a list of the amounts paid into the Second Injury
26 Fund and the Rate Adjustment Fund by each insurance company
27 on behalf of their insured employers. The Director shall
28 verify to the Chairman that the amounts paid by each
29 insurance company are accurate as best as the Director can
30 determine from the records available to the Director. The
31 Chairman shall verify that the amounts paid by each
32 self-insurer are accurate as best as the Chairman can
33 determine from records available to the Chairman. The
34 Chairman may require each self-insurer to provide information
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1 concerning the total compensation payments made upon which
2 contributions to the Second Injury Fund and the Rate
3 Adjustment Fund are predicated and any additional information
4 establishing that such payments have been made into these
5 funds. Any deficiencies in payments noted by the Director or
6 Chairman shall be subject to the penalty provisions of this
7 Act.
8 The State Treasurer, or his duly authorized
9 representative, shall be named as a party to all proceedings
10 in all cases involving claim for the loss of, or the
11 permanent and complete loss of the use of one eye, one foot,
12 one leg, one arm or one hand.
13 The State Treasurer or his duly authorized agent shall
14 have the same rights as any other party to the proceeding,
15 including the right to petition for review of any award. The
16 reasonable expenses of litigation, such as medical
17 examinations, testimony, and transcript of evidence, incurred
18 by the State Treasurer or his duly authorized representative,
19 shall be borne by the Second Injury Fund.
20 If the award is not paid within 30 days after the date
21 the award has become final, the Commission shall proceed to
22 take judgment thereon in its own name as is provided for
23 other awards by paragraph (g) of Section 19 of this Act and
24 take the necessary steps to collect the award.
25 Any person, corporation or organization who has paid or
26 become liable for the payment of burial expenses of the
27 deceased employee may in his or its own name institute
28 proceedings before the Commission for the collection thereof.
29 For the purpose of administration, receipts and
30 disbursements, the Special Fund provided for in paragraph (f)
31 of this Section shall be administered jointly with the
32 Special Fund provided for in Section 7, paragraph (f) of the
33 Workers' Occupational Diseases Act.
34 (g) All compensation, except for burial expenses
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1 provided in this Section to be paid in case accident results
2 in death, shall be paid in installments equal to the
3 percentage of the average earnings as provided for in Section
4 8, paragraph (b) of this Act, at the same intervals at which
5 the wages or earnings of the employees were paid. If this is
6 not feasible, then the installments shall be paid weekly.
7 Such compensation may be paid in a lump sum upon petition as
8 provided in Section 9 of this Act. However, in addition to
9 the benefits provided by Section 9 of this Act where
10 compensation for death is payable to the deceased's widow,
11 widower or to the deceased's widow, widower and one or more
12 children, and where a partial lump sum is applied for by such
13 beneficiary or beneficiaries within 18 months after the
14 deceased's death, the Commission may, in its discretion,
15 grant a partial lump sum of not to exceed 100 weeks of the
16 compensation capitalized at their present value upon the
17 basis of interest calculated at 3% per annum with annual
18 rests, upon a showing that such partial lump sum is for the
19 best interest of such beneficiary or beneficiaries.
20 (h) In case the injured employee is under 16 years of
21 age at the time of the accident and is illegally employed,
22 the amount of compensation payable under paragraphs (a), (b),
23 (c), (d) and (f) of this Section shall be increased 50%.
24 Nothing herein contained repeals or amends the provisions
25 of the Child Labor Law relating to the employment of minors
26 under the age of 16 years.
27 However, where an employer has on file an employment
28 certificate issued pursuant to the Child Labor Law or work
29 permit issued pursuant to the Federal Fair Labor Standards
30 Act, as amended, or a birth certificate properly and duly
31 issued, such certificate, permit or birth certificate is
32 conclusive evidence as to the age of the injured minor
33 employee for the purposes of this Section only.
34 (i) Whenever the dependents of a deceased employee are
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1 aliens not residing in the United States, Mexico or Canada,
2 the amount of compensation payable is limited to the
3 beneficiaries described in paragraphs (a), (b) and (c) of
4 this Section and is 50% of the compensation provided in
5 paragraphs (a), (b) and (c) of this Section, except as
6 otherwise provided by treaty.
7 In a case where any of the persons who would be entitled
8 to compensation is living at any place outside of the United
9 States, then payment shall be made to the personal
10 representative of the deceased employee. The distribution by
11 such personal representative to the persons entitled shall be
12 made to such persons and in such manner as the Commission
13 orders.
14 (Source: P.A. 88-672, eff. 12-14-94; 89-470, eff. 6-13-96.)