Illinois Appellate Court Rules Prejudgment Interest Act is Constitutional

August 2023

Jeffrey F. Clement

In Cotton v. Coccaro, 2023 IL App (1st) 22028, the Illinois Appellate Court for the First Judicial District upheld the constitutionality of the Illinois Prejudgment Interest Act, 735 ILCS 5/2-1303 (the “Act”). Prior lower court decisions, specifically Hyland in Cook County, found the Act unconstitutional. However, Hyland did not result in an appeal. Cotton is the first appellate decision to address the constitutionality of the Act. The Cotton decision will have statewide precedential effect unless a contrary ruling is issued by the Illinois Supreme Court or one of the other Illinois appellate district courts.

Text Alert – You’ve Been Served!

August 2023

Emma L. Knowles

Do you presume, like many, that service of summons and complaint (service of process) can only be made by a sheriff or other authorized process server? If so, you are not alone. However, as of April 24, 2023, your presumption is incorrect. Under certain circumstances, alternate avenues for service of process are available, including e-mails, text or social media messages.

Illinois Supreme Court Rule 102 governing Service of Summons and Complaint and Return in a Civil Action was recently amended to allow service by text, email, or social media messenger. But caution is warranted, as these options require a diligent inquiry as to the location of the individual defendant, as well as an affidavit affirming that such an inquiry has been conducted. Further, the court must be convinced that the party being served has access to and the ability to use the necessary technology to receive a complaint in the manner served.

Borrowed Employee: Who’s in Charge?

August 2023

Catherine L. Carlson

Imagine a situation wherein Company A requests an employee from Company B to work at its plant and then the employee gets injured. In a “normal” situation, the exclusive remedy provisions of the Workers' Compensation Act would prevent any personal injury lawsuits by the employee against either Company. This is known as the “loaned employee” or “borrowed employee” doctrine. The Cabrera v. Wiremasters case provided some clarity on the scope of the protections afforded and any available exceptions.

In Cabrera v. Wiremasters, Inc., 2023 IL App (1st) 2207844-U, the First District Appellate Court in Illinois found that the plaintiff was a borrowed employee and thus, the borrowing employer was subject to the Workers' Compensation Act’s exclusive remedy provisions. In this case, Total Staffing Solutions (loaning employer) hired plaintiff as a press operator who did work on a press brake machine at Wiremasters (borrowing employer). Plaintiff was injured and attempted to file a personal injury lawsuit against Wiremasters. Wiremasters moved to dismiss the complaint arguing that it was plaintiff’s borrowing employer and thus, plaintiff’s civil action was barred by the Workers' Compensation Act and that plaintiff had not alleged any facts supporting a finding of any exception to the exclusive remedy provision.

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

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.