                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   In re Marriage of Washkowiak, 2012 IL App (3d) 110174




Appellate Court            In re MARRIAGE OF CHRISTOPHER WASHKOWIAK, Petitioner-
Caption                    Appellant, and ROSANA WASHKOWIAK, Respondent-Appellee.



District & No.             Third District
                           Docket No. 3-11-0174


Filed                      March 7, 2012
Rehearing denied           April 10, 2012
Held                       In marriage dissolution proceedings where the parties’ settlement
(Note: This syllabus       agreement awarded respondent 17.5% of the net proceeds of petitioner’s
constitutes no part of     workers’ compensation settlement as her interest in that settlement, the
the opinion of the court   trial court properly awarded respondent 17.5% of the $70,000 of the
but has been prepared      workers’ compensation settlement placed in a Medicare set-aside
by the Reporter of         account, notwithstanding petitioner’s contention that the funds in that
Decisions for the          account were not “net proceeds” of the workers’ compensation
convenience of the         settlement, since the funds in the account fell within the dissolution
reader.)
                           agreement’s definition of “net proceeds” where the parties agreed that
                           monies identified for “medical payments” would be part of the “net
                           proceeds” of the workers’ compensation settlement.


Decision Under             Appeal from the Circuit Court of La Salle County, No. 09-D-478; the
Review                     Hon. Daniel J. Bute, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Jane M. Ryan (argued) and Nigel S. Smith, both of Law Offices of Peter
Appeal                     F. Ferracuti, P.C., of Ottawa, for appellant.

                           Eric L. Miskell and Ryan Hamer (argued), both of Miskell Law Center,
                           of Ottawa, for appellee.



Panel                      PRESIDING JUSTICE SCHMIDT delivered the judgment of the court,
                           with opinion.
                           Justice Wright concurred in the judgment and opinion.
                           Justice McDade dissented, with opinion.



                                              OPINION

¶1          Petitioner, Christopher Washkowiak, appeals from the trial court’s order awarding
        respondent, Rosana Washkowiak, $12,250, a figure which represents 17.5% of the portion
        of his workers’ compensation settlement that was placed in a Medicare set-aside account. For
        the reasons that follow, we affirm.

¶2                                               FACTS
¶3          Petitioner and respondent were married in 2004. In 2008, petitioner suffered a work-
        related injury while working for Northern Pipeline Construction (Pipeline). Petitioner
        subsequently filed a claim for workers’ compensation.
¶4          In 2009, petitioner filed a petition for dissolution of the parties’ marriage. On August 31,
        2010, the trial court entered a judgment of dissolution of marriage, which incorporated the
        parties’ settlement agreement. Paragraph 10 of the judgment provides, in pertinent part:
                “10. The Respondent is awarded 17.5% of the net proceeds from the Petitioner’s
            workers’ compensation settlement as and for her interest in the same. Net proceeds are
            defined as the agreed award amount less workers’ compensation attorneys’ fees and usual
            and customary litigation fees and expenses. The Petitioner is ordered not to receive any
            funds from his settlement without first directing his attorney to provide a draft check to
            the Respondent for her portion herein. Net shall include any reimbursement for
            unemployment which he actually pays and medical payments he actually pays.”
            (Emphasis added.)
¶5          On December 9, 2010, an arbitrator of the Illinois Workers’ Compensation Commission
        approved a settlement agreement between petitioner and Pipeline. The agreement released
        Pipeline from “all past and future obligations for the payment of workers’ compensation
        benefits, indemnity and/or medical benefits.” The agreement included a “Workers’

                                                  -2-
     Compensation Medicare Set-aside Arrangement” (MSA). The agreement defined the MSA
     as “an interest bearing bank account funded solely by the Medicare Allocation and used
     solely to pay for future Medicare-covered medical and/or prescription drug expenses.” The
     monetary terms of the agreement were listed as follows:
          “THE ATTACHED TERMS OF THE SETTLEMENT
          Total amount of settlement               $365,000 (does not include $70,000 MSA)
          Deduction: Attorney’s fees               $67,903.35
          Deduction: Medical reports, X-rays $766.60
          Amount employee will receive             $296,330”
     The settlement agreement also contained the following provisions:
              “4. The parties agree that *** Centers for Medicare Services approval of the MSA
          is not required under CMS policy.
              5. The parties agree that of the total settlement amount of $435,000, the amount that
          is allocated to the MSA is $70,000.
                                                ***
              14. In entering into this *** Agreement, it is not the intentions of the parties to shift
          responsibility of the Claimant’s future medical treatment and/or prescription drug
          treatment to the Federal government. The allocation of $70,000 is intended directly for
          payment of Claimant’s future treatment related to the work injury that would normally
          be covered by Medicare so that the parties are in compliance with the Medicare
          Secondary Payer Act (42 U.S.C. § 1395(b)) and applicable Medicare rules and
          regulations.”
¶6        The parties agree that per the terms of the judgment of dissolution, respondent was
     entitled to 17.5% of the $296,330 petitioner received under the settlement agreement. A
     dispute, however, arose as to whether respondent was entitled to 17.5% of the $70,000 set
     aside in the MSA. Petitioner asserted that respondent was not entitled to 17.5% of the MSA
     funds as the funds were not part of the “net proceeds” of the settlement. Instead, petitioner
     argued that the funds were set aside solely to satisfy Medicare’s interests. Respondent
     argued, inter alia, that she was entitled to 17.5% of the MSA funds as the $70,000 did not
     fall under the excluded category of “attorneys’ fees and usual and customary litigation fees
     and expenses,” as provided in paragraph 10 of the judgment of dissolution. The trial court
     held that the $70,000 set aside in the MSA was to be included in the net proceeds for
     purposes of calculating respondent’s 17.5% share. Since the undisputed amounts had already
     been paid, the trial court ordered petitioner to pay respondent $12,250.

¶7                                        ANALYSIS
¶8       Petitioner argues that the nature of the MSA precludes the funds in the MSA from being
     part of the “net proceeds” of the settlement. He does not argue that the funds in the MSA
     should be excluded from the “net proceeds” by operation of either of the exceptions stated
     in the dissolution decree: attorney fees and litigation expenses.


                                                -3-
¶9          Normally a trial court’s determination that an asset is marital or nonmarital is reviewed
       for an abuse of discretion. However, in cases such as this where the determination is one of
       law and does not involve credibility determinations, our review is de novo. In re Marriage
       of Joynt, 375 Ill. App. 3d 817, 819 (2007). The terms of a settlement agreement incorporated
       into a dissolution decree are interpreted as any other contract. In re Marriage of Turrell, 335
       Ill. App. 3d 297, 305 (2002). “When the terms are unambiguous, the court determines the
       parties’ intent solely from the language of the instrument.” Id.
¶ 10        According to the dissolution decree, “net proceeds” include reimbursement for medical
       payments actually paid by petitioner. The funds in the MSA are part of the settlement with
       petitioner and are to be used for petitioner’s medical payments. Unless there is something
       about an MSA that removes the MSA funds from the definition of “net proceeds,” the funds
       fall squarely within the dissolution decree’s definition of “net proceeds.”
¶ 11        We begin with a brief overview of the Medicare program as it relates to an MSA. Prior
       to 1980, Medicare generally paid for medical services whether or not the recipient was also
       covered by another health plan. New York Life Insurance Co. v. United States, 190 F.3d
       1372, 1373 (Fed. Cir. 1999). However, beginning in 1980, Congress enacted a series of
       amendments to the Medicare program designed to curb skyrocketing health costs and
       preserve the fiscal integrity of the Medicare system. Frazer v. CNA Insurance Co., 374 F.
       Supp. 2d 1067, 1071 (N.D. Ala. 2005). “These amendments are known as the ‘Medicare as
       Secondary Payer’ (‘MSP’) statute or the MSP provisions. They are codified at 42 U.S.C.
       § 1395y.”1 New York Life Insurance Co., 190 F.3d at 1374.
¶ 12        The MSP statute precludes Medicare from providing payment for services to the extent
       that the payment in question has been made or can reasonably be expected to be made
       promptly under the applicable workers’ compensation act. See 42 U.S.C. § 1395y(b)(2)(A)
       (2006). This exclusion is also embodied in the Code of Federal Regulations (the Code),
       which expressly embraces workers’ compensation as payment subject to reimbursement to
       Medicare. See 42 C.F.R. § 411.20(a)(2) (2012). Specifically, 42 C.F.R. § 411.20(a)(2)
       provides:
                “(2) Section 1862(b)(2)(A)(ii) of the Act precludes Medicare payment for services
            to the extent that payment has been made or can reasonably be expected to be made
            under ***:
                (i) Workers’ compensation.”
¶ 13        “The Central Office of the Centers for Medicare and Medicaid Services (CMS), as
       authorized by Congress, has promulgated regulations specifically intended to carry out the
       mandate of the MSP amendments.” Frazer, 374 F. Supp. 2d at 1073. For example, 42 C.F.R.
       § 411.46 establishes that all parties in a workers’ compensation case have a duty to protect
       Medicare’s interests when resolving workers’ compensation cases that include future medical
       expenses. See 42 C.F.R. § 411.46 (2012). Specifically, 42 C.F.R. § 411.46 states:



               1
               The MSP is not an act in the traditional sense but, rather, a series of amendments related
       to the Medicare act and similar statutes. See Frazer, 374 F. Supp. 2d at 1071.

                                                  -4-
               “(a) Lump-sum commutation of future benefits. If a lump-sum compensation award
           stipulates that the amount paid is intended to compensate the individual for all future
           medical expenses required because of the work-related injury or disease, Medicare
           payments for such services are excluded until medical expenses related to the injury or
           disease equal the amount of the lump-sum payment.
               (b) Lump-sum compromise settlement.
                   (1) A lump-sum compromise settlement is deemed to be a workers’ compensation
               payment for Medicare purposes, even if the settlement agreement stipulates that there
               is no liability under the workers’ compensation law or plan.
                   (2) If a settlement appears to represent an attempt to shift to Medicare the
               responsibility for payment of medical expenses for the treatment of a work-related
               condition, the settlement will not be recognized. For example, if the parties to a
               settlement attempt to maximize the amount of disability benefits paid under workers’
               compensation by releasing the workers’ compensation carrier from liability for
               medical expenses for a particular condition even though the facts show that the
               condition is work-related, Medicare will not pay for treatment of that condition.
               ***
               (d) Lump-sum compromise settlement: Effect on payment for services furnished after
           the date of settlement–
                   (1) Basic rule. Except as specified in paragraph (d)(2) of this section, if a lump-
               sum compromise settlement forecloses the possibility of future payment of workers’
               compensation benefits, medical expenses incurred after the date of the settlement are
               payable under Medicare.
                   (2) Exception. If the settlement agreement allocates certain amounts for specific
               future medical services, Medicare does not pay for those services until medical
               expenses related to the injury or disease equal the amount of the lump-sum settlement
               allocated to future medical expenses.”
¶ 14       The workers’ compensation settlement in this case included an MSA whereby the parties
       to the workers’ compensation claim allocated $70,000 of the $435,000 settlement for future
       medical expenses resulting from the work injury. Thus, Medicare will pay for covered
       medical services only after the exhaustion of the $70,000. See 42 C.F.R. § 411.46(d)(2)
       (2012). An individual claimant receiving a lump-sum settlement that includes a future
       medical care component is obligated to exhaust those funds before Medicare can be made
       responsible for medical payments. Therefore, the $70,000 placed into the MSA is for the sole
       purpose of paying petitioner’s medical bills; the settlement is reimbursing him for his future
       medical costs. Accordingly, the funds in the MSA fall squarely under the definition of “net
       proceeds” contained in the dissolution agreement.
¶ 15       Petitioner presents no evidence that the funds in the MSA are not “net proceeds.” There
       is no question the money is his. The settlement was between petitioner and Pipeline;
       petitioner was given the money. It is not Medicare’s or Pipeline’s money. The MSA clarifies
       how much of the settlement is intended to pay for future medical costs associated with the
       injury and places that amount in a separate account so that it can be shown that those funds

                                                -5-
       were used to pay petitioner’s medical costs caused by the injury. Since the dissolution decree
       defines “net proceeds” to include payment for future medical costs, the funds in the MSA are
       net proceeds. The trial court correctly determined that respondent is entitled to 17.5% of the
       entire settlement.
¶ 16       Petitioner also argues that respondent cannot be given 17.5% of the funds in the MSA
       since those funds are only to be used to pay for his future medical costs. Petitioner and the
       dissent ignore the key fact that he agreed to include funds received for medical payments as
       part of the “net proceeds” subject to respondent’s 17.5% claim. In making this argument,
       petitioner attempts to subdivide the net proceeds into separate funds to be dealt with
       individually. This is not supported by the dissolution decree. The dissolution decree requires
       that respondent receives 17.5% of the net proceeds. Petitioner can provide that 17.5% from
       the settlement funds and still leave $70,000 in the MSA. This is in no way inequitable.
       Respondent receives 17.5% of the net proceeds; petitioner gets the rest. From his remaining
       82.5%, he places (or leaves) $70,000 in MSA. The dissent’s public policy argument is
       without merit. The trial court simply enforced the contract petitioner made.
¶ 17       The dissent’s statement that “Medicare is the sole beneficiary of any and all MSAs, as
       these accounts are created solely to protect Medicare’s interests,” is incorrect. Infra ¶ 28. The
       MSA fund is set aside to pay the first $70,000 of any future medical bills petitioner may
       incur as a result of the work-related injury. If he incurs no such bills, he gets the money back.
       If he does incur such bills, he pays them from the MSA. The money does not go to Medicare.
       In essence, in settling his workers’ compensation claim, petitioner agreed to earmark $70,000
       for his future medical bills. In settling the property claims in his marital dissolution,
       petitioner agreed that monies identified for “medical payments” would be part of the “net
       proceeds.” The $70,000 that petitioner chose to place in the MSA falls squarely within the
       petitioner’s own definition of “net proceeds.” The dissent picks one sentence out of
       paragraph 10 of the agreed dissolution order and ignores another sentence that states, “Net
       shall include any reimbursement for unemployment which he actually pays and medical
       payments he actually pays.” The dissent manufactures an ambiguity by ignoring part of the
       paragraph. There is no ambiguity.
¶ 18       Lastly, the dissent correctly notes that we failed to address respondent’s argument that
       the MSA in this case was not mandatory and, therefore, is a sham. We ignored this argument,
       not because of a perceived lack of subject matter jurisdiction, but because we affirm the trial
       court on the assumption that the MSA was established in good faith. We find no reason to
       address respondent’s additional argument in support of affirming the trial court.

¶ 19                                   CONCLUSION
¶ 20       For the foregoing reasons, the judgment of the circuit court of La Salle County is
       affirmed.

¶ 21       Affirmed.



                                                 -6-
¶ 22        JUSTICE McDADE, dissenting:
¶ 23        The issue, as framed by petitioner, is whether “the trial court erred in ruling that [the]
       MSA funds were to be included in the ‘net proceeds’ of petitioner’s workers’ compensation
       settlement and that therefore respondent was entitled to 17.5% of those funds [per the terms
       of the judgment of dissolution].” I dissent from the majority’s decision affirming the trial
       court’s judgment. Because the MSA funds were set aside for the sole purpose of satisfying
       Medicare’s interests, I would find that they are not part of the “net proceeds” of the
       settlement.
¶ 24        At the outset, I note that the majority has failed to address an issue raised by respondent.
       While respondent appears to acknowledge an individual claimant receiving a lump-sum
       settlement, which includes a future medical care component, is obligated to exhaust those
       funds before Medicare can be made responsible for medical payments, she challenges the
       validity of the MSA in the instant case. Specifically, respondent argues that the creation of
       the MSA “was not mandatory” under the Central Office of the Centers for Medicare and
       Medicaid Services (CMS) guidelines. Instead, she speculates that the MSA was “a sham
       created by petitioner in hopes of taking more than his share of the workers’ compensation
       settlement.”
¶ 25        I would find that this court lacks subject matter jurisdiction to decide the validity of the
       MSA.2 The creation of the MSA stems from a separate workers’ compensation action.
       Respondent was not a party to that action. Instead, petitioner and Pipeline were the only
       parties to the workers’ compensation action. Neither petitioner nor Pipeline appealed from
       the settlement order approved by the Illinois Workers’ Compensation Commission. Thus,
       the MSA stands as created and may not now be attacked collaterally by respondent. The only
       valid question presently before this court is whether respondent is entitled to 17.5% of the
       MSA.
¶ 26        Paragraph 10 of the judgment of dissolution provides, in pertinent part: “[r]espondent is
       awarded 17.5% of the net proceeds from the Petitioner’s workers’ compensation settlement.”
       In light of the above authority, I find the $70,000 set aside in the MSA does not constitute
       “net proceeds.” While I recognize paragraph 10 expressly identifies “net proceeds” as “the
       agreed award amount less workers’ compensation attorney’s fees and usual and customary
       litigation fees and expenses,” the existence of the MSA creates a latent ambiguity in
       paragraph 10 because the intended beneficiary of the MSA is Medicare and the federal
       treasury, not petitioner, or for that matter, respondent. Stated another way, the “Medicare as
       Secondary Payer” (MSP) statute, 42 U.S.C. § 1395y (2006) and specifically, 42 C.F.R.
       § 411.46 (2012), does not confer a benefit upon petitioner or respondent. Instead, the statutes
       are intended to protect Medicare’s interests when resolving workers’ compensation cases that
       include future medical expenses. See 42 C.F.R. § 411.46. The workers’ compensation
       settlement agreement illustrates this fact in that it expressly identifies that the $70,000 is not


               2
               Subject matter jurisdiction refers to a court’s power to both adjudicate the general question
       involved and to grant the particular relief requested. Government Employees Insurance Co. v.
       Hersey, 397 Ill. App. 3d 551, 554 (2010).

                                                   -7-
       included in the “[t]otal amount of settlement [($365,000)].” After subtracting deductions in
       the amount of $67,903 for attorney fees and $766 for medical reports and X-rays from the
       $365,000, the “net proceeds” petitioner received from Pipeline, per the settlement agreement,
       was $296,330. Consequently, I would hold respondent is only entitled to 17.5% of $296,330
       at this time.
¶ 27        The majority, in finding the judgment of dissolution to be unambiguous, erroneously
       relies upon the following sentence found in paragraph 10 of the judgment: “Net shall include
       any reimbursement for unemployment which he actually pays and medical payments he
       actually pays.” The majority’s citation to this sentence alone establishes an internal conflict
       within the judgment rendering it ambiguous. Again, the clear intent of petitioner and
       respondent was to ensure respondent received 17.5% of the net proceeds of petitioner’s
       workers’ compensation settlement. The workers’ compensation settlement agreement,
       however, expressly provides that the MSA funds are not included in the total amount of the
       settlement. The judgment of dissolution is devoid of any reference to MSA funds. Moreover,
       the MSA funds do not constitute a “reimbursement for *** medical payments.” Instead, the
       MSA funds are funds set aside to protect Medicare’s interests in case petitioner is required
       to seek medical treatment or care in the future. Thus, the majority’s reliance upon the above
       sentence has no bearing or relevance on the precise issue before us.
¶ 28        Even if I were to assume that paragraph 10 is not ambiguous and the parties did in fact
       intend the MSA funds to be part of the “net proceeds” of the settlement agreement, paragraph
       10 would, in such a case, be void as against public policy.3 Medicare is the sole beneficiary
       of any and all MSAs, as these accounts are created solely to protect Medicare’s interests.
       Both parties acknowledge that all funds held within an MSA can only be used for future
       medical expenses. I therefore believe it would violate public policy to allow respondent to
       take 17.5% from the funds allocated to Medicare for her own personal use. Such a diversion
       of funds not only harasses logic, but it also cuts against the grain of the plethora of legislative
       authority that has been enacted since 1980 in an effort to curb skyrocketing health costs and
       preserve the fiscal integrity of the Medicare system.
¶ 29        The majority disagrees with my assertion that Medicare is the sole beneficiary of the
       MSA account. The majority appears to believe that Medicare is not the beneficiary of the
       MSA because “[t]he money does not go to Medicare.” Supra ¶ 17. While the majority is
       correct that the MSA funds do not go directly to Medicare, it ignores the fact that these funds
       ensure that Medicare is not liable for any future medical payment until the funds have been
       exhausted. Stated another way, although the MSA funds do not increase the amount of
       revenue being brought into Medicare’s coffers, the funds will decrease the expenses drawn
       from Medicare’s coffers in the event that petitioner requires further treatment. The majority’s
       position that Medicare only qualifies as a beneficiary if the MSA funds go directly to
       Medicare overlooks the fact that the entire purpose of an MSA is to protect Medicare’s
       interests, not the interests of the claimant or the claimant’s ex-spouse.


               3
                Courts have the power to find a contract or contract provision void on the grounds public
       policy. In re M.M.D., 213 Ill. 2d 105, 114 (2004).

                                                  -8-
¶ 30       The majority also claims that if petitioner incurs no medical bills, “he gets the money
       ($70,000) back.” Supra ¶ 17. The majority is simply incorrect. I believe that the majority’s
       failure to cite any authority in support of its proposition derives from the fact that no such
       authority exits. Based on my review of the statute and attendant policies, it appears the only
       instance where a claimant may possibly “get[ ] the money back” is in the person of his or her
       estate upon death.4 Specifically, the CMS policy memorandum5 dated April 22, 2003,
       provides:
                “21) If a beneficiary or injured individual dies before the Medicare set-aside
           arrangement is completely exhausted, what happens to the remaining money?
                Answer: Once the RO and the contractor responsible for monitoring the beneficiary’s
           case ensure that all of the beneficiary’s claims have been paid, then any amount left over
           in the beneficiary’s Medicare set-aside arrangement may be disbursed pursuant to state
           law, once Medicare’s interests have been protected. This may involve holding the
           Medicare set-aside arrangement open for some period after the date of death, as
           providers, physicians, and other suppliers are permitted to submit their initial bill to
           Medicare for a period ranging from 15-27 months after the date of service.” Thomas
           Grissom, Medicare Secondary Payer–Workers’ Compensation (WC) Frequently Asked
           Questions, Centers for Medicare & Medicaid Services (April 22, 2003),
           https://www.cms.gov/WorkersCompAgencyServices/Downloads/42203Memo.pdf.
¶ 31       Previously, there appeared to be one other circumstance where a claimant may possibly
       “get[ ] the money back.” This circumstance was discussed in question/answer 10 of the CMS
       policy memorandum dated July 11, 2005, and was entitled “Beneficiaries that Request
       Termination of a Workers’ Compensation Medicare Set-Aside Account (WCMSA).” It
       stated:
                “Q10. Beneficiaries that Request Termination of a WCMSA Account–May a
           claimant have any or all of a WCMSA released for personal purposes under any
           circumstances?
                A10. The administrator of the CMS-approved WCMSA should not release set-aside
           funds for any purpose other than the purpose for which the WCMSA was established
           without approval from CMS. However, if the treating physician concludes that the
           beneficiary’s medical condition has substantially improved, then the beneficiary (or the
           beneficiary’s representative) may submit a new WCMSA proposal covering future
           expected medical expenses. Such proposals must justify at least a 25% reduction in the
           outstanding WCMSA funds. In addition, such proposal may not be submitted until at
           least five years after a previous CMS approval letter and should be accompanied by all
           supporting documentation not previously submitted with the original WCMSA proposal.


                4
                    It would be the claimant’s estate not the claimant him- or herself who may be entitled to the
       funds.
                5
             CMS has issued several policy memorandums with answers to frequently asked questions
       on MSAs.

                                                       -9-
           The CMS decision on the new proposal is final and not subject to administrative appeal.
                The above proposals shall be submitted to CMS c/o COBC. If CMS determines that
           a 25% or greater reduction is justified, CMS will issue a new approval letter. After CMS
           issues a new approval letter, any funds in the current WCMSA in excess of the newly
           calculated amount may be released to the claimant.” Gerald Walters, Medicare
           Secondary Payer (MSP)–Workers’ Compensation (WC) Additional Frequently Asked
           Questions, Centers for Medicare & Medicaid Services (July 11, 2005),
           https://www.cms.gov/WorkersCompAgencyServices/Downloads/71105Memo.pdf.
¶ 32       Effective August 25, 2008, however, the July 11, 2005 memorandum at question/answer
       10, entitled “Beneficiaries that Request Termination of a WCMSA Account,” was rescinded.
       The memorandum dated August 25, 2008, stated, in pertinent part:
                “Effective immediately, the July 11, 2005 memorandum at Question and Answer 10,
           entitled ‘Beneficiaries that Request Termination of a WCMSA Account,’ is rescinded.
           Section 1862(b)(2) of the Social Security Act (the Act) (42 USC 1395y(b)(2)) requires
           that Medicare payment may not be made for any item or service to the extent that
           payment has been made under a workers’ compensation (WC) law or plan. Medicare
           does not pay for an individual’s WC related medical services when that individual
           received a WC settlement, judgment or award that includes funds for future medical
           expenses, until all such funds are properly expended. To protect the Medicare Trust
           Fund, a set-aside arrangement should be funded based on the life expectancy of the
           individual unless the State law specifically limits the length of time that WC covers
           work-related conditions.” Gerald Walters, Medicare Secondary Payer–Workers’
           Compensation Information, Centers for Medicare & Medicaid Services (Aug. 25, 2008),
           https://www.cms.gov/WorkersCompAgencyServices/Downloads/82508Memo.pdf.
¶ 33       The fact that CMS rescinded question/answer 10 entitled, “Beneficiaries that Request
       Termination of a WCMSA Account,” illustrates an intent to deny a claimant any opportunity
       to petition to “get[ ] the money back” during his or her lifetime. Instead, the express policy
       behind rescinding question/answer 10 is to “protect the Medicare Trust Fund,” not the
       claimant. Thus, it appears, based on my review of the statutory provisions and administrative
       interpretations, that the only circumstance where a claimant may possibly be allowed to
       “get[ ] the money back” is when he or she dies. Even in this situation, however, a claimant’s
       estate is only entitled to the remaining MSA funds after all of Medicare’s interests have been
       satisfied. The majority’s assertion that petitioner “gets the money ($70,000) back” (supra
       ¶ 17) if he does not incur any medical bills is not only unsupported, it is superficial and
       misleading.
¶ 34       I note that some discussion has been had both here on appeal and in the trial court
       regarding this hypothetical question of what is to happen to the MSA funds if petitioner does
       in fact die prior to exhaustion of the funds. This question is not ripe for our review. See
       Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010) (court noted that the
       doctrine of ripeness seeks to insure that courts decide actual controversies and not
       speculative or abstract questions).
¶ 35       For the foregoing reasons, I would reverse the judgment of the trial court holding that


                                               -10-
respondent is entitled to 17.5% of the MSA funds and remand the matter for further
proceedings.




                                   -11-
