New Opportunities for Amended Review of Medicare Set-Asides

June 2023

Amber M. Parris

On May 15, 2023, the Centers for Medicare & Medicaid Services ("CMS") released Version 3.9 of the Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) Reference Guide. The updated Reference Guide debuts big changes that seem to further the goal of CMS to incentivize the use of their voluntary review and approval process for Medicare Set-Asides.

Most significantly, CMS removed the upper limit for submitting a request for Amended Review of a Medicare Set-Aside. Previously CMS allowed a one-time only request for Amended Review when it had issued a determination on a Medicare Set-Aside Proposal at least 12 months but no more than 72 months prior to submission of the request for Amended Review. In the revised Reference Guide, CMS has removed the 72-month cap. So, there is no longer a date at which a CMS determination becomes “too old” to submit a request for Amended Review.

Updated Meal Break Requirements: What Employers Need to Know

Updated Meal Break Requirements: What Employers Need To Know

May 2023

Markeya A. Fowler

Guaranteed breaks for Illinois employees is well established under the One Day Rest in Seven Act (ODRISA). Under The Act, employees are guaranteed meal breaks. 820 ILCS 140/3 states that:

“Every employer shall permit its employees who are to work for 7 ½ continuous hours, except those specified in this Section, at least 20 minutes for a meal period beginning no later than 5 hours after the start of the work period.”

As of January 1, 2023, employers are required to provide an additional 20-minute rest period for those employees who work 12 hours or more in a day. 820 ILC 140/3 was amended to add that:

“An employee who works in excess of 7 ½ continuous hours shall be entitled to an additional 20-minute meal period for every additional 4 ½ continuous hours worked.”

At first glance the amended statute may appear to just require an additional 20-minute break however, the wording requires the employer to provide breaks of 20 minutes for every 4 ½ hour increment in excess of 7 ½ hours.

Complexities of Workers' Compensation Liens: Understanding the Exceptions

March 2023

Andrea M. Carlson and Ivan Nieves

Generally, in Illinois workers’ compensation cases, there are no liens allowed against petitioners’ cases pursuant to Section 21 of the Illinois Workers’ Compensation Act:

“No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, debt, penalty or damages,. . .”

As will be discussed in this article, however, there are important exceptions where liens can be claimed against a petitioner’s case which require special consideration and attention. Conversely, you may receive notice of a lien that is actually unenforceable against a workers’ compensation case under the law and this article will provide guidance how to identify and approach these unenforceable liens.

Parking Lot Falls - Recent Appellate Court Decision Raises Questions About Employer-Provided Parking Areas

February 2023

Ivan Nieves

A recent Illinois Appellate Court Decision may change what is considered an employer “provided” parking area for purposes of compensability for an employee who sustains an injury in a parking area. In the recent case, Western Springs Police Department v. Ill. Workers' Comp. Comm'n, 2023 IL App (1st) 211574WC (“Western Springs”), the Illinois Appellate Court held that an employee who fell on ice and snow in a parking area owned by the municipality, but available for use by the general public, could still recover workers’ compensation benefits despite the fact that there was no greater risk to the employee than the general public.

Uninsured Motorist Insurance Applies To Accident Outside Vehicle

January 2023

Dylan R. Besser

I. Introduction

The First District Appellate Court, in Galarza v. Direct Auto Ins. Co, 2022 IL App. (1st) 211595, recently ruled on a case that required it to interpret Illinois’ public policy as to uninsured motorist (“UM”) insurance coverage and determine whether coverage applies when the insured is acting as a pedestrian and not actively occupying a vehicle. The Appellate Court held that a provision in the defendant insurer’s automobile policy, which limited UM coverage to insureds occupying an “insured automobile,” violates 215 ILCS 5/143a (2020) of the Illinois Insurance Code (“Section 143a”) and, thus, was unenforceable as against public policy. Although insurers are not required to cover every possible loss and may legitimately limit their risks, an insurer may not directly or indirectly deny UM coverage mandated by statute to an insured.

General Contractor Owes Duty of Care Despite Lack of Retained Control

January 2023

Matthew K. Abrams

In Ellis v. ICC Grp., Inc., 2022 IL App (1st) 211581-U, the First District Appellate Court addressed a general contractor’s duties to an employee of a subcontractor who sustaining a spinal injury at a job site.

The Court overturned the lower court’s granting of summary judgment on behalf of a general contractor when it ruled that, under Section 343 relating to “premises liability,” the contractor owed a duty of care to the plaintiff. Of note, the Appellate Court also affirmed that no duty of care was owed under Section 414 (“retained control”) as there was no evidence the contractor retained control of the means and methods of the subcontractor’s work.