Potential Dangers of Collectively Bargained Workers’ Comp in Illinois

By now, many are familiar with some of the recent reforms made to the Illinois workers' compensation system. The changes included a 30 percent cut in rates paid to medical professionals and different standards for determining if a worker is disabled.

One change that has been less widely discussed, but still may have a significant impact on injured workers in Illinois, is the creation of a pilot program that establishes collective bargaining for workers' compensation. The pilot program will focus on the construction industry, but in the future it may be expanded into other sectors.

How the Collective Bargaining Pilot Program Will Work

The Director of the Illinois Department of Labor will select two labor organizations within the construction industry to participate in the collective bargaining. The two trade unions that are likely to be chosen for the pilot are the operating engineers and laborers.

The collective bargaining agreement will specify the obligations and procedures to be followed regarding workers' compensation claims. Some examples of possible terms include: specifying treatment providers and listing those doctors approved to conduct independent medical exams (IMEs), requiring alternative dispute resolution, listing approved retraining and vocational rehabilitation services, and specifying the terms of a return to work program.

Once the collective bargaining agreement has been appropriately filed, it will be recognized as a binding agreement between the labor organization and the construction employer.

Impact of Collectively Bargained Workers' Comp Benefits

Although the reform measure prohibits the pilot program from altering an employer's entitlements or employees' benefits, there still is cause for concern.

Through collective bargaining, the ability of employees to choose their doctors can be negotiated away. Employers may then restrict which medical providers injured workers may see, and prevent them from getting a second opinion from the physician of their choice.

Additionally, collective bargaining may mandate the use of alternative dispute resolution processes such as mediation or binding arbitration. Therefore, employees may be required to use a process outside of the state Workers' Compensation Commission.

In essence, employers may potentially select both the dispute resolution process and the physicians who will deal with workers' compensation claims. This will likely unfairly favor employers and put injured employees at a disadvantage.

Additionally, the construction industry has been singled out as the focus of the pilot program. Any negative consequences will disproportionately impact construction workers in Illinois who, because of the nature of their work, have the highest quantity of workers' compensation claims, as well as some of the most costly. They are also arguably the group most in need of workers' compensation funds.

In sum, by allowing employers to opt out of the state workers' compensation system, injured employees may not receive the funds and services they so desperately need.