March 2012

By: Anthony J. Caruso, Esq.

Under the Illinois Workers’ Compensation Act, all employers are required to get workers’ compensation insurance if their business is automatically covered under the law because it is declared to be extra hazardous.

Historically, there was an owner-operator exemption under this provision, which stated, as follows:

Carriage by land, water or aerial service and loading or unloading in connection therewith, including the distribution of any commodity by horsedrawn or motor vehicle where the employer employs more than 2 employees in the enterprise or business. (emphasis added)

Thus, the owner-operator trucker who employed a helper was previously NOT automatically covered under the Illinois Workers’ Compensation Act and NOT required to get workers’ compensation insurance.

A recent case, Illinois Workers’ Compensation Commission, Insurance Compliance Division v. American Charter Coach, 2011, fined an employer $489,500 for failing to obtain workers’ compensation insurance. In that case, the Illinois Workers’ Compensation Commission elected not to apply the owner-operator exemption in the carriage by land provision; but instead, it applied the automatic coverage provision that “any business or enterprise in which electric, gasoline, or other power driven equipment is used in the operation thereof” is considered to be extra hazardous and it must have workers’ compensation insurance.

Based upon this decision, all businesses, entities, owner-operators in carriage by land MUST have workers’ compensation insurance REGARDLESS of the number of employees.

PLEASE NOTE: This is an interpretation by the Illinois Workers’ Compensation Commission. It is not a court decision. Hopefully, this position of the Insurance Compliance Division of the Illinois Workers’ Compensation Commission will be challenged in the courts as overreaching and an attempt to change the law without the approval of the legislature.

Questions? Call Attorney Anthony J. Caruso, Jr. of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email him at ancaruso@wesselssherman.com.