What if I am injured, but I work for an employer that is not self-insured and does not have workers’ compensation insurance? 

If an employer is not self-insured and does not have workers’ compensation insurance, then an injured worker may have to proceed against both the employer and the Injured Workers’ Benefit Fund (IWBF). The IWBF is a state fund that is funded by penalties and fines paid by uninsured employers. The money held by the IWBF is used for payment of workers’ compensation benefits for injured workers whose employees did not have workers’ compensation insurance coverage. Unfortunately, the worker does not receive any benefits until a final decision is rendered by the Commission. The worker does not receive weekly benefits as they normally would if their employer had workers’ compensation insurance.  

 At the end of the fiscal year, all the decisions that named the IWBF as a Respondent will be paid at a pro rata share of the money available in the fund that year. This means that the worker might not receive the entire amount of the benefits they were owed by their employer. 

 Can I sue my employer for not having workers’ compensation insurance?  

If your employer does not have workers’ compensation insurance and is not self insured, then you have the option to proceed against the employer in circuit court much like a personal injury claim. Before filing in the circuit court, you need to have what has been dubbed a “Keating Hearing”, also known as a 4(d) hearing. 

 How do I request a 4(d) “Keating Hearing”?  

 Your first step is to file an Application for Adjustment of Claim with the Illinois Workers’ Compensation Commission. After your claim is filed, you must verify with the National Council on Compensation Insurance (NCCI) that your employer did not have workers’ compensation insurance on the date of your accident. In order to confirm this with the NCCI, you must send them a subpoena requesting information regarding whether a workers’ compensation insurance policy was in effect with your employer on the date of your accident. 

 Once you receive confirmation from NCCI that your employer is not insured, then you should file a request for a hearing before a Commissioner. Your claim will be assigned a Commission number and be set on an upcoming Commissioner’s call. On the Notice of Motion, you should indicate 4(d) hearing / Keating Hearing in the “Other” section of the form.

 The term “Keating Hearing” is based on the case Keating v. 68th and Paxton, LLC, in which the Illinois Appellate Court made it very clear that an injured worker can’t proceed against an uninsured employer under Section 4(d) until the Commission has made its determination as to whether an employer willingly failed to obtain workers’ compensation insurance.

In order to proceed in circuit court, you need to have a decision by the Commission that the employer was uninsured. You must attach the Commission decision to your complaint, or risk having your complaint dismissed by the Circuit Court. The Commission, and not the circuit court, is the agency empowered to determine whether an injured worker is entitled to seek relief under Section 4(d) of the Act. 

Proving that your employer willingly failed to obtain workers’ compensation insurance is no cakewalk. The Appellate Court recently found that an injured worker fell short in proving that his employer willingly failed to obtain workers’ compensation insurance because the injured worker only provided evidence of a nonrenewal notice, but did not offer evidence showing proof of mailing of that nonrenewal notice. American Kitchen Delights, Inc. v. The Illinois Workers’ Compensation Commission, 2020 IL App (1st) 191593WC (June 12, 2020). 

 DON’T WAIT:  If you have an uninsured employer and want to pursue your case in circuit court, then you must have a decision from the Commission before you file the complaint in Circuit Court. This requires that you have to a Commission decision before the Statute of Limitations runs out on your claim. To say that this is a highly technical undertaking would be an understatement, especially in light of the Appellate Court’s recent ruling in American Kitchen Delights, Inc. I strongly recommend that you find a lawyer to assist you in such an undertaking. But don’t take too long. That statute of limitations clock never stops ticking, so get started immediately!