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Open Medical Rights and My 46-Year-Old Comp Case

By John F. Kamin

Recently, our firm held a luncheon to congratulate and celebrate Murv Pretorius’ 40th anniversary with the firm. Our firm has gone through several name changes, has employed hundreds of people through the years, but by our count, no attorney had practiced with Quinn Johnston for forty (40) years. I, myself, am proud to report that I will soon be celebrating my 20th anniversary with the firm. I am fortunate to have practiced under a number of excellent attorneys including Murv, Tom Johnston, Mick Henderson and Bob Jennetten to name a few. However, I had never met one of the founding partners of the firm’s workers’ compensation defense practice, Joe Leimkuehler. Sadly, Mr. Leimkuehler was fatally injured in a skiing accident in 1974. However, I have had the occasion to represent one of Joe’s clients.

In the summer of 1965, a young man was working for the State of Illinois, twisted his knee and tore his lateral meniscus. As was the standard procedure in 1965, surgery was performed and most of the meniscus was removed. In 1967, Joe tried his case, obtained an award for 30% loss use of a leg and medical rights remained open. Unfortunately, there were some additional complications with the knee and within a few years a 19(h)/8(a) Petition was filed and an additional award of medical and PPD was issued by the Commission.

In 1989, our client had some additional knee problems requiring some cortisone injections and aspiration of the knee joint. These procedures were as a result of complications with arthritis which had developed in the lateral joint space. The State questioned how a doctor could relate these problems to an event some twenty-three (23) years later, but the State paid the medical bills.

In 2004, our client again developed significant knee swelling which at first was thought to be an attack of gout but was later determined to be a bleed in the knee caused by the osteoarthritis in his lateral compartment. Back in 1989, the then-treating surgeon indicated that our client would need a knee replacement in 5-15 years. These treating doctors have since retired. A knee replacement was again recommended but it was suggested that our client live with the condition for as long as he could.

This now brings us to my involvement in the claim. Our client now wishes to undergo a knee replacement at age 73. His treating surgeon is not in his group health’s network, and regardless, group health refuses coverage for occupationally-related conditions. As such, he has now filed an additional 8(a) Petition seeking authorization for a knee replacement from the State. Incidentally, our client has not worked for the State for over forty (40) years. The treating surgeon compared the x-rays of his near pristine right knee to his severely degenerated left knee and has opined that the lack of his lateral meniscus is a direct cause of the need for a knee replacement.

This claim is simply an illustration of the risk in leaving medical rights open. I expect back in 1966 that the State was unwilling to pay 30% of a leg and that is what precipitated the trial. However, the claim could have likely settled on contracts and closed his medical rights after receiving the award for some nominal additional consideration.

I have seen a trend for carriers and employers I represent to be more willing to settle cases with open medical rights. This has especially been the case where Medicare’s interest must be considered and the proposed allocation for future medical seems excessive. However, in those cases, typically the petitioner is older, and it is unlikely the worker will live forty-six (46) more years. However, my 46-year-old case illustrates the real benefit we have in Illinois that a claim can be settled and future medical rights may be closed. If you have a case involving a younger worker that may develop complications, albeit many years down the road, closure of medical rights has great potential value.

The Workers’ Compensation Reform does reduce the amount payable pursuant to the fee schedule, caps the period of benefits for wage differential payments, but does not affect future medical rights under Section 8(a). Future medical “for life” means “for life” and closure of same should always be one of the primary goals in resolving a claim.

Originally published in the Fall 2011 edition of Quinn Quarterly.