Illinois Legislative Update: Changes to the Illinois Workers' Compensation Act Present New Costs and Challenges for Employers

June 2026

Jeffrey R. Gibellina

Before the Illinois General Assembly adjourned late last week (or, more accurately, in the wee hours of Monday morning), the legislature passed a number of bills including HB5228, which amends the Illinois Workers’ Compensation Act and the Illinois Insurance Code, putting additional burdens on employers.

For reference, the General Assembly has 30 days to send HB5228 to Governor Pritzker for review and the governor has 60 days to sign the bill into law, veto the bill, or issue an amendatory veto. We understand that Governor Pritzker is overwhelmingly likely to sign this bill into law within the next 30 days.

Of note, the bill addresses the following items, most of which adversely impact employers:

• Two new requirements under Section 12 for independent medical examinations;
• Three-month validity period for utilization reviews;
• Increase in burial expenses;
• Additional fees to fund the Illinois Workers’ Compensation Commission;
• Entities that need workers’ compensation coverage.

Two New Requirements Under Section 12 for Independent Medical Examinations

The General Assembly voted in favor of two new provisions under Section 12 of the Illinois Workers’ Compensation Act that are, in summary, as follows:

1. Respondent must provide the (a) petitioner or petitioner’s representative (i.e. attorney) and (b) the petitioner’s treater a copy of the IME report addressing reasonableness and necessity of medical services within 90 days of“when the employer receives the medical records from the treating health care professional requesting the medical service.”

The predominant issue with this provision is that the 90-day period starts when employer receives – presumptively from treater, counsel, or via subpoena – treatment records covering medical service(s) at issue. From that moment, if employer wishes to exercise their Section 12 right to an IME, the statute requires that the Section 12 examination be conducted, report generated and tendered to employee and treater all within 90 days. Needless to say, this is particularly challenging to navigate for the employer given it will depend on, in part, third parties to comply with the 90-day requirement (i.e. healthcare providers to respond to subpoenas in timely manner and the Section 12 examiners to schedule/conduct exams and generate corresponding reports in timely manner).

Also, it remains to be seen whether employers can request certified records from the treater before the 90-day period starts. Meaning, is it enough for the treater, employee or its attorney to just send over a set of treatment records to trigger the 90-day deadline or is the employer entitled to a certification page (as required within a subpoena response) representing the enclosed treatment records are complete? If no certification is required under this provision, the employer runs a higher risk of sending incomplete treatment records to a Section 12 examiner, which lessens that examiner’s creditability and ultimately the strength of the employer’s defense in a workers’ compensation case (absent another IME or IME addendum that includes review of additional records).

Moreover, when employers request independent medical examinations, they want the examining physician to have all relevant medical records and films in hand – not just the treater’s records – including pre-existing treatment records, primary care records, physical therapy records, emergency room records, reports/films from diagnostic imaging facilities, etc. Gathering all of these records via subpoena can take well over 90 days despite regular follow-ups and re-issuance of subpoenas.

Though the legislature likely intended to shorten litigation with this provision, ironically, the provision will likely result in delays as employers may need multiple IME addendums to both comply with the 90-day provision and ensure the examiner’s opinions are based on review of all relevant (and certified) medical records and films as this goes toward examiner’s credibility at trial.

The language adds that employers are subject to fees and penalties under Sections 16 and 19 for “failure to authorize or approve treatment,” which undoes previous case law on this issue.

The takeaway: Set your initial IME as soon as you receive the treater’s records (either directly from treater, from petitioner’s attorney, or via subpoena), and document all efforts undertaken to secure the relevant medical records and to schedule the IME and obtain the subsequent report. Documentation can be used as evidence to defeat any petitions filed under sections 16 and 19 for fees and penalties.

2. The independent medical examiner must be “board certified in the same specialty as the treating health care professional.”

This language is perplexing as weighing the qualifications/opinions of treaters versus independent medical examiners typically falls under the purview of the court. Also, employers typically use qualified/well-credentialed physicians for independent medical examinations. If they did not, that would seriously jeopardize their chances of prevailing at hearing on a host of issues opined on by these examiners including causation, nature and extent, past treatment, future treatment, work restrictions, etc. This language now introduces some possibilities that, like the other amendments, could ultimately end up delaying litigation. For instance, if the treater for the employee is board-certified in neurosurgery and orders a lumbar fusion, the employer would be obligated, assuming it wanted an independent medical examination, to secure an independent medical examination by a neurosurgeon (or board-certified in neurosurgery) rather than a board-certified orthopedic surgeon. In that case, the employer may opt for two examinations: one by a board-certified neurosurgeon to comply with this provision and the other by a board-certified orthopedic surgeon, as part of their litigation strategy. There is also risk of a treater ordering treatment on an unqualified basis and the employer, again, assuming they want an independent medical examination, being obligated to secure an opinion from a similarly unqualified examiner (and another exam from a qualified examiner).

The takeaway: Employers should always get an IME from an examiner board-certified in same specialty as treater to comply with this provision and then consider whether another IME (by a board-certified physician in another specialty) is necessary to further bolster their defense(s). Employers may also initially consider a utilization review for a more immediate defense to medical services ordered by treater.

Three-Month Validity Period for Utilization Reviews

With regard to Utilization Reviews covered under Section 8.7 of the Illinois Workers’ Compensation Act, the General Assembly passed language relating that any certification of treatment via a utilization review is “valid for the 3 months immediately after the date on which the employee and health care provider receive the certification or for the length of treatment as determined by the employee’s health care provider.” The bill adds that certification of surgery “shall be inclusive of 3 months of postoperative health care services as clinically indicated by the treating health care professional…” The impetus for this legislation was likely to reduce the number of utilization reviews to, in theory, streamline treatment. How this 3-month period will play out in practice is less certain. If, for example, a UR physician certifies physical therapy 2-3x per week for 4-6 weeks, does that mean the employee worker has 3 months to undergo that treatment? If so, and months pass by before employee undergoes therapy, employers will likely argue unreasonable delay under Section 8(a) and/or Section 19(d). What if employee undergoes a series of alternative treatments before the certified physical therapy – within that 3-month period – that call into question whether therapy remains reasonable and necessary? Is there a line to draw between what is valid under Section 8.7 and reasonable and necessary under Section 8(a)? Employers may consider a Section 12 exam or independent medical examination, instead of a utilization review, to challenge whether future treatment remains reasonable and necessary, which could allow for a viable defense against authorizing certified treatment that falls within the 3-month period.

The takeaway: Employers are not without recourse to defend against UR-certified treatment that falls within the 3-month validity period.

Increase in Burial Expenses

Under Section 7(f) of the Illinois Workers’ Compensation Act, for death cases, the legislature increased the statutory burial benefit from $8,000.00 to $10,000.00.

The takeaway: Pay the extra $2,000.00 to avoid fees and penalties.

Additional Fees to Fund the Illinois Workers’ Compensation Commission

The legislature amended the Illinois Insurance Code to enact an additional charge to be paid by companies in Illinois as part of their obligations to fund the Illinois Workers’ Compensation Commission Operations Fund Surcharge. In short, the legislature defines the additional charge as “a percentage of the company's underwriting gain for its workers' compensation and excess workers' compensation lines in this State, as reported in the company's annual statement filed for the previous year under Section 136. Each year's percentage shall be calculated as the annual funding target for the year divided by the statewide underwriting gain for the previous year multiplied by 100.” The Department of Insurance will publish a “company bulletin” with specific instructions for calculating this charge.

The takeaway: Employers should be aware of this pending/additional surcharge.

Entities That Need Workers’ Compensation Coverage

Under Section 4 of the Illinois Workers’ Compensation Act, the legislature essentially expanded the pool for those entities required to carry workers’ compensation insurance in Illinois to those “engaged in activities requiring licensure by a State agency for which proof that it has insured its workers’ compensation liability is a requirement for licensure.” Those entities run the risk of civil (and criminal) liability for not providing proof of workers’ compensation coverage as stated under Section 4(d) of the Illinois Workers’ Compensation Act.

The takeaway: Confirm with the Illinois Department of Insurance to determine whether your entity is required to carry a workers’ compensation policy, if any doubt exists.

We understand the challenges that these changes represent. We are here to help you navigate them while keeping you “in the know” on how these changes evolve in the ensuing months and years.

If BCM Law, P.C. can assist in defending any of your Illinois workers’ compensation claims, please do not hesitate to contact us.