How long does it take to get to trial after a 19(b) petition is filed?

Under Illinois workers’ compensation law, there is no set answer to this question, but I can tell you that it doesn’t or rather shouldn’t take a year and a half.

That’s how long it had been for a recent caller to my office and there was no indication that she’d be going to trial any time soon.  I could see online via the Illinois Workers’ Compensation Commission website that a 19(b) trial motion had been filed, but that was way back in 2013. 

A 19(b) is what’s known as a petition for immediate hearing.  Basically, it allows your lawyer to get your case ready for trial and have an Arbitrator decide a dispute.  It’s not the end to your case, but rather a way of determining if you in fact did sustain a work related injury or whether or not you are entitled to benefits.  The most common scenario is when your doctor says you can’t work and an independent medical examination (IME) says you are fine.

To get ready for a trial in this scenario usually requires your attorney to gather all of your medical records and take a deposition of your doctor and the IME doctor.  That’s mostly it.  On average that should take three months or so and usually it shouldn’t drag past six months.  That’s hard to take if you have no money coming in, but not as hard to take as 18 months would be.

So why was my caller waiting so long?  In her case, the firm she hired is rather lazy by reputation and tends to take every case that comes through the door, no matter the quality.  When you have a couple thousand cases, you can’t help everyone and what ends up happening at firms like this one is that the tough cases get the shaft.

I’ve heard of other firms that take cases in all parts in Illinois, but refuse to actually travel to the hearing locations for a trial.  In other words, the best work comp firm in Chicago is of no use to you if your case is being heard in Springfield and they won’t go there for you.

Still other firms don’t want to spend the money to go to trial.  Taking a deposition of a doctor or two can cost a couple of thousand dollars.  That is money that is supposed to be paid by the attorney and then reimbursed to them at the end of the case.  Some younger firms can’t afford to do this.  Other times your case isn’t that strong or doesn’t have a ton of value so they don’t want to spend the money to make a trial happen.  My take on that is then they shouldn’t have taken your case to being with.

Whatever the reason, you have every right to ask your attorney for a firm and realistic time table as to when you will be able to testify. If they tell you it could take years, they are simply lying to you.

 

Illinois workers' compensation - Can arthritis be considered a work injury?

Some work injury cases are very straightforward. Others have some fact or circumstance that makes them less so. One of these circumstances is when the injured worker was already suffering from an illness or condition when they got hurt at work. Not everyone is in perfect health. If you re-injure an old injury because of your job, or if a health issue is made worse by your job, there may be some question about whether your injury is truly a work injury under the law.

These are called pre-existing conditions. A pre-existing issue can be an injury from an old accident, or it can be something caused by age, such as arthritis or degenerative disc disease. Sometimes these things make a worker more susceptible to injury on the job. Other times, a job injury aggravates an old injury. Either way, it’s not a deal-breaker.

Degenerative disc disease is fairly common. As you age, the discs in your spine lose their ability to absorb shock, and an injury can have a greater effect on someone with this condition. Arthritis is a broad category of joint conditions. Jobs that put extra strain on the joints can lead to aggravation of arthritis. A job that requires hard physical labor, or one that requires repetitive motion, or even one that requires a worker to remain sedentary can affect arthritis, as well.

Illinois workers’ compensation law basically says that having a pre-existing condition does not disqualify an injury from counting as a work injury. You shouldn’t be denied benefits because had previously injured your knee and then hurt your knee at work or because you have arthritis and a work injury makes your arthritis act up.

You just have to prove that your job caused your current health problem or problems. This is true of any work injury – you have to prove that it’s related to your job. The bottom line is that pre-existing conditions can be a complication in a case, but they don’t mean you don’t have a case. You should still pursue a claim for workers’ compensation.

Know that the insurance company might try to deny your benefits if they find out about a pre-existing condition. Don’t be discouraged. You can request a hearing, ideally with an attorney on your side, and ask an arbitrator to award benefits. This will force the insurance company to pay you going forward, as well as pay you for the benefits you missed out on because they denied your claim originally. You might have to go to trial.

The law is on your side, but you need an experienced attorney who won’t sit back and wait to see what happens. They should be aggressive in proving that your injury is work related and in getting your benefits approved.

Deciding to report a work injury to your employer

Some injured workers hesitate to tell their employers about their job injuries; others willingly tell their employer but are uncomfortable asking about workers’ compensation. We understand that it might be an awkward conversation, but we think this comes from some misunderstandings about the way workers’ compensation works and why it’s there in the first place.

Workers’ compensation does not come out of your employer’s pocket. Most employers are required by law in Illinois to carry workers’ compensation insurance for all of their employees. This means that their insurance company pays for any work injuries. When you file a claim to collect benefits, you are more involved with the insurance company than with your employer. If you hire an attorney to help you, he or she will be dealing directly with the insurance company, not your employer.

It’s also helpful to understand why workers’ compensation even exists. The system is meant to help both sides. Employers benefit from workers’ compensation because it protects them from lawsuits. Employees are not allowed to sue their employer for a work injury, and in return, they get to file for workers’ compensation benefits. It’s how the system works. There’s some give and take, and it’s fairly routine.

The law actually requires you to notify your employer in order to get benefits. If you don’t give notice within 45 days of your injury, then the insurance company can try to deny your benefits. If your employer asks you not to report your injury as a work injury, they’re asking you to lie. Don’t take that risk. If you lie to your doctor about how you got hurt, and it goes through your group health insurance rather than your employer’s workers’ compensation insurance, you could be guilty of insurance fraud.

Illinois is considered a worker-friendly state when it comes to work injuries. Employees are entitled to payment for all of their medical bills. There shouldn’t be any out-of-pocket expenses. Also, if you can’t work, you can collect 2/3 of your average weekly wage until you can return to your job. Don’t risk losing these benefits. Notify your employer of your injury, make sure you see your doctor and tell him or her exactly what happened, and get a free consultation with an Illinois workers’ compensation attorney who can answer your questions.

Ten things to know about Illinois workers' compensation law

There’s a good post on this at our sister site at http://www.findgreatlawyers.com/10-facts-illinois-workers-compensation-law/ that I would encourage you to read.  It’s a real good starting point for someone that simply wants to educate themselves on Illinois work comp law.

What I would add to this list is:

  1. The law is always changing, so it’s really important to have an attorney who is handling these cases day in and day out in your corner.  Avoid general practice lawyers.
  2. Nurse case managers are not your friend.  They are there to interfere with your medical care and limit what is spent on getting you healthy.  But …
  3. … You can boot them from your case at any time, even if you gave them permission to be on your case.  It’s often the first thing we do.
  4. Your case can’t be closed without you either waiting too long to file it (via an application for adjustment of claim) or if you settle the case via a contract. I can’t believe the number of people that call me and say the insurance adjuster told them the case was closed. That’s not their call.
  5. Never give a recorded statement. It’s not for your benefit and as the saying goes, anything you say can and will be used against you.  Most of our clients have nothing to hide (we wouldn’t take them on if we knew they were lying), but even then you don’t want your words to be twisted and used against you.  Let your lawyer do the talking.
  6. The most common question we get is, “What is my case worth?”  The answer is that it depends on your ultimate recovery, your wages, any disputed facts and many other things. We’ll tell you if we know, but any lawyer that gives you that answer soon after you’ve been hurt is a b.s. artist and is just going to give you an inflated number with the hopes that you will hire them.
  7. These cases are not lawsuits.  They are claims for benefits just like health insurance.  You aren’t suing anyone.
  8. The second most common question we get is, “How long will this last?”  The answer is that it will take as long as it takes for you to get healthy and back to work, assuming that will happen.  We encourage people not to settle early because once you do, the case is closed forever.
  9. It is legal for the insurance company to have someone conduct video surveillance on you.  It happens a lot if there is a serious or long term injury.  If you are being honest you have nothing to worry about and the reality is that most surveillance attempts are a waste of time and money.
  10. Not only do you not have to pay anything up front to hire a work comp lawyer in Illinois, but you should not pay for any of the expenses up front either.  That’s on the attorney to pay for and if they won’t they are the wrong lawyer for you.  But do know that the expenses on most cases are under $200 and I can only recall one case ever where I’ve seen them going over $10,000.  There are no filing fees to bring a case so if you hire an attorney they should file your claim right away.

As always, if you have any questions you are welcome to call us – it’s free and confidential – at (312) 346-5578 or fill out our contact form and we’ll call you.

 

"I want to sue my employer for causing my work injury"

We sometimes hear from people who are wondering whether they can sue their employer for damages after a work injury. It’s a fair question. These callers often believe that their employer caused their injury, either because of some oversight or because their employer did something to contribute to an unsafe working environment. So they claim the employer was at fault and they’re wondering if that matters.

The answer is that you generally can’t sue your employer for a work injury. Workers’ compensation is your only realistic option. Instead of a lawsuit, you file a claim for benefits, which will be paid by your employer’s insurance company, if you qualify. The claim is called an Application for Adjustment of Claim and it’s filed with the Illinois Workers’ Compensation Commission.

If your injury is covered, then your employer (through their insurer) will cover all of your related medical costs. The coverage extends beyond doctor visits and typically includes medications, physical therapy and even surgery. Illinois law generally allows the worker to choose their own doctor.

For an injury that requires you to take time off work, benefits include payment for some of your lost wages. This is called Temporary Total Disability, and the amount you get is based on your average weekly wage. Your checks should cover 2/3 of your average weekly wage until you can return to work. Sometimes, your doctor clears you for light duty and your employer can allow you to continue working in an alternate capacity within your doctor’s restrictions.

Workers’ compensation is an entire area of law meant to handle these situations outside of the typical court system. It was created as a compromise for employers and employees. The compromise is that employees get medical coverage and payment for lost wages without having to prove their case in court. They just have to show that their injury arose out of and in the course of their employment. Fault doesn’t matter, and they are compensated even if the injury was their own fault. The benefit to the employer is that they don’t have to face a lawsuit every time an employee is hurt on the job. In fact, they are pretty much immune from employee injury lawsuits.

If you aren’t technically an employee, then you might be able to sue. Typically, if workers’ compensation law applies to you, then you have to go that route. But independent contractors and volunteers aren’t included in the law, so they can sue based on fault. Another exception worth noting is that an employee can sue a third party for their injury. If someone other than their employer caused the injury, they might be able to pursue a lawsuit against that third party.

For better or for worse, an injured employee is generally prohibited from suing his or her employer for their injury. If you have other questions about how this area of law works or how your injury fits into the big picture, feel free to ask us.

Can I appeal the arbitrator's decision?

If your workers’ compensation case goes to trial, and the arbitrator rules against you, then you can appeal. If you’ve gotten to this point in your case, then you probably know that workers’ compensation cases are different from lawsuits. An arbitrator, who is similar to a judge, oversees the trials of injured workers and makes a ruling based on the evidence.

There are a couple of things to keep in mind if you are considering an appeal. Don’t delay. There is only a certain window of time in which you can appeal a decision by an arbitrator. Also, stick with your attorney. In an appeal, the law does not allow new evidence or witnesses. The attorney handling the appeal is stuck with all the same pieces from the original trial. For this reason, a new attorney is not likely to agree to handle your appeal, especially if there were problems with the way the trial was handled in the first place.

Another thing to know, and another reason why it can be hard to find an attorney for your appeal, is that winning on appeal is unlikely. It’s not impossible, but the success rate is fairly low. It’s just not good business for a lawyer to pick up a case at this point in the process. Your original lawyer might be hesitant to appeal, but if you believe the outcome is wrong, you should insist on it. They’re likely your only shot.

This situation underscores the importance of hiring a good attorney. Not only will it help you win in the first place, but you aren’t stuck with a bad attorney for your appeal, if you need to go down that road. When looking for a workers’ compensation attorney, find someone who has a lot of experience representing injured employees. Make sure they’ve been successful, too.

If you are questioning whether you hired the right attorney, know that you can get a second opinion. You are allowed to switch attorneys. And if it’s in your best interest, then do so without delay. The longer you wait the harder it can become. Your attorney can have a significant affect on the outcome of your case. In our experience, for example, your settlement amount is likely to be higher if you have an experienced attorney negotiating with the insurer.

If you have questions about appealing your case, feel free to give us a call.

When will my workers' compensation case go to trial?

Your attorney should take the time to explain the process and timeline of a typical Illinois workers’ compensation claim. While no two claims are exactly the same, there are deadlines and rules that apply in most cases. Typically, workers’ compensation cases settle without going to trial. But that’s not to say you and your attorney shouldn’t be thinking about trial and preparing for that potential outcome.

After you file your claim, your case will be assigned to a hearing location and an arbitrator who will act as the judge, overseeing the progress of your case and hearing any disputes that are brought before him or her. Your case will be scheduled for a routine status hearing every three months. At this hearing your attorney and a representative of the insurance company will appear before the arbitrator, at the hearing site, and give any relevant updates. At this hearing, either side can formally request a trial. Or, more typically, the parties agree to continue the case for another three months.

The status hearings can go on like this for three years before an arbitrator has to push for a resolution of the case. In the meantime, your attorney and the insurance company will be in charge of moving things along. A big factor in how quickly a case gets resolved is your health. A claim cannot – and should not – end until you are recovered. The legal term is “maximum medical improvement,” and it means you’re as recovered as you are going to get. Once this happens, it makes sense to end the claim.

As we mentioned, most cases end in settlement, with the insurance company paying the injured worker a lump sum for any permanent injury they have suffered. In exchange, the injured worker agrees to give up any future medical coverage for that injury. If an agreement cannot be reached, then you can go to trial and the arbitrator can decide. If there is ever a dispute during your treatment and recovery, you can request an immediate hearing. Your attorney should not hesitate to request one of these if your benefits have been denied or stopped. 

Whether it’s trial or settlement, it’s impossible to predict how long it will take to get to that final step in your claim. A lot depends on your injury and recovery. It can take a couple of years. But what’s certain is that your attorney should be willing to take your case to trial if it’s in your best interest, and he or she should pursue your case aggressively. Workers’ compensation attorneys typically handle a high volume of cases, but that does not make it ok for them to drag their feet on any one of them. You should expect to be kept informed along the way.

What is a hearing site? Will I have to go there?

A hearing site is basically a courthouse for workers’ compensation cases. Work injuries are resolved through a claims process rather than an injury lawsuit, so you won’t be appearing in court. The hearing site is where any disputes will be heard, where your attorney will go for periodic status hearings, and where your trial will take place if you end up going to trial instead of settling.

After you file a claim, which is done by filing out an Application for Adjustment of Claim and submitting it to the Illinois Workers’ Compensation Commission, your case will be assigned to a hearing site and an arbitrator, who acts as a judge. You may or may not have to be present for a status hearing; you will have to be there if you go to trial or if there’s an emergency hearing.

Most employers are required to carry workers’ compensation insurance to pay benefits to employees hurt on the job. These benefits include medical bill payments and checks for part of the income you lose while you are potentially unable to work because of your injury.

There are hearing sites all over the state. Yours will typically be the hearing site closest to where your injury happened. Often, this is close to your main place of work. However, if you were injured out of state (you can still get Illinois workers’ compensation), the hearing site will probably be the location closest to your home here in Illinois.

There are some situations in which a worker does not live or routinely work in Illinois, yet still qualifies for Illinois workers’ compensation benefits. This can be the case if the employee was hired in Illinois. In that case, the hearing site will probably be a location that is considered convenient for everyone involved.

There are status hearings every three months on workers’ compensation cases. Your case will be on the arbitrator’s calendar and that day they will hear whether there is any progress on the case or if it will be continued for another three months. Either side can request that a trial date be set. The arbitrator monitors cases this way for up to three years, at which point they will push for resolution in the case. Until that time, your attorney will work with the insurance company to try and reach an agreement on settlement.

If there is ever an “emergency” in your claim, such as a refusal to pay benefits, or a sudden stop to your benefits, your attorney can request what’s called a 19(b) hearing, which is an expedited process. This will take place at the hearing site, with you and your attorney present.

Most claims settle. But that can’t happen until the worker is at “maximum medical improvement,” which means their treatment and recovery is complete. It doesn’t mean they are 100%, but rather that they are as good as they’re going to get. At this point, it makes sense for the two sides to settle. If an agreement can’t be reached, your attorney can go to trial to argue for fair compensation. There are pros and cons to settling a claim, so never make that call without the advice of a solid worker’ compensation attorney.

When you suffer a stair injury at work, the details really matter

Illinois law requires employers to compensate employees who are injured on the job. This compensation comes in several forms – replacing lost wages if you can’t work and covering 100% of your medical costs. For medical care, you shouldn’t pay anything out of pocket as long as the treatment is reasonable and related to your injury.

The catch is that not all injuries that happen while you are at work count as work injuries under the law. You’re only eligible for compensation if your injury “arises out of” your employment. In plain English, this simply means that your injury has to be caused (at least somewhat) by your job. This is a major topic in Illinois workers’ compensation law, and new cases come out all the time clarifying – or attempting to clarify – what constitutes a work injury.

All the details surrounding an injury matter when determining whether an injury is work related. In some cases, it’s very clear that the job caused the injury. If you are hurt by a piece of machinery while operating that machinery in order to do your job, then that injury most certainly arose out of your employment.

The less clear cases are those in which the employee is hurt doing something more generic, like going up or down the stairs. They get hurt at work but doing something that is not specific to their job. Instead, they were doing something that the general public does on regular basis. These cases can go either way, depending on the details. The outcome often hinges on the idea of risk.

The law in Illinois looks at whether your employment created an increased risk of that injury. If something in your employment made going down the stairs more risky – increased your risk of falling – then you’re more likely to get benefits to help with that injury. Running down the stairs in an urgent work-related situation (maybe a nurse helping a patient in distress) is a good example. The risk is no longer neutral, but rather work-related because it’s a nurse’s job to respond quickly to a patient in pain or one that is facing a life-threatening situation.

On the other hand, simply going down a flight of stairs, without anything increasing the risk of a fall, isn’t a strong case for workers’ compensation. In many of these cases, an employee doesn’t even know why they got hurt. They simply suffered an unexplained fall. The facts often show that they were in good health, they weren’t in a hurry or carrying anything, and many were even holding the handrail. They just fell for no apparent reason. In these cases, an arbitrator or judge is likely to rule that there was no increased risk and therefore the injury is not technically a work injury. It’s not “compensable.”

Even in the last example though, we need a full picture of your job duties to tell you if there’s a claim or not.  If you were walking down the stairs and your knee popped, that is usually not a case.  But if you have to go up and down the stairs 20 times a day, that is a lot more than the normal person does, so a good argument could be made that you were at an increased risk of injury because your job duties are unique.

One thing to take away from these cases, if you are an employee who suffers a work injury, is try to remember as many details as you can right away. Write down everything you remember as soon as you can. Maybe the floor was wet, or your boss had just called you into an urgent meeting and you were in a hurry. Maybe you were carrying something precarious. You never know what might matter and which facts will tip the scale toward your injury being categorized as a work injury.

 

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Different rules for Illinois "traveling employees"

The general rule, when it comes to workers’ compensation, is that your injury has to occur in the course of your employment. If it doesn’t, then it’s not considered a work injury for legal purposes and you aren’t eligible for benefits. This is a big deal because the benefits you can get under workers’ compensation law include payment of 100% of your medical treatment (no out-of-pocket expenses) plus checks to cover 2/3 of your lost wages while you are off work recovering.

The definition of a work injury has some wiggle room. You don’t necessarily have to be at work in order for an injury to count as a work injury. For example, employees who are injured in the parking lot on their way into work are sometimes approved for benefits, depending on the specific facts of the situation. On the other hand, commute injuries usually are not covered.

When it comes to traveling employees, there is a larger category of situations in which an injury counts as a work injury. The rule for employees who travel is that if they are doing something “reasonable and foreseeable” while traveling for work, then an injury in the course of that activity is considered a work injury, even if the employee was not actually working at the time.

The idea is that you wouldn’t be where you are (hotel, restaurant, airport, beach) if you weren’t traveling for your job. So, during pretty much your entire business trip you are considered to be working. In one famous case, a guy was on a work trip in Hawaii and got hurt while riding a bike. His claim for workers’ compensation was approved. Other examples are injuries in hotel showers and tripping on a curb going to or from a restaurant for dinner. Even recreational activities are thought to be work-related in these cases.

Just remember, that the activity has to be reasonable and foreseeable. Going out to eat, going sightseeing, and exercising – all of these activities are arguably reasonable and foreseeable while on a work trip. It doesn’t matter if what you were doing was solely for your own personal enjoyment. The limit would be if you were doing something reckless, such as drinking and driving, getting extremely intoxicated, doing drugs, etc. These aren’t reasonable and foreseeable.

If you get hurt hiking outside of Denver while visiting the area for business, you might assume that it’s a personal injury case or a regular health insurance claim, but it could very well be a workers’ compensation claim. If you are unsure, there’s no harm in finding out for sure. You can get a free and confidential consultation with an Illinois workers’ compensation attorney very easily. Just don’t wait too long. There are time limits for notifying your employer and for filing a claim.

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Illinois work comp: The importance of a witness

Illinois workers’ compensation law is a “no-fault” law.  That means you don’t have to prove that anyone was negligent in order to get benefits.  You can’t win a case if you were goofing off, but you can even if you were partially at fault for an injury (e.g. you fell asleep at the wheel while driving the company van and got injured).

As a result, in many cases you do not need a witness to prevail for benefits.  That said, it never hurts to have one.  For example, if you did get hurt when you fell asleep at the wheel, if an anonymous tipster tells your employer that you had been drinking, you will have a hard time winning your case.  But if a co-worker was with you the whole time and can testify that you didn’t drink a drop then you should be fine.

When a witness becomes really important is when you get in to a “he-said, she-said” sort of situation.  A while back a worker called us and said that her arm was injured while working at an office in Waukegan when a co-worker forcibly grabbed her.  She does have a real, medically documented injury, but benefits were denied.  The reason the insurance company is fighting her is the alleged assaulter denies ever even touching her, much less squeezing her arm.

So in order to win she has to go trial and the Arbitrator will have to believe that this did in fact happen.  There is no other witness, so it comes down to how credible each of them is.  And the injured worker theoretically has a motivation to lie, so unless their story is very believable and/or the other party is not believable at all (and they might have a motivation to lie too) then it’s a very hard case.

What I always tell people is that the first thing you should do after an accident is get medical attention.  Of course there is nothing more important than your health.  After that, you need to make sure to report your accident to your employer.  I then encourage people to start keeping a journal that documents what happened, when it happened, who saw it and then tracks your medical progress.  It’s good for you in case some day your memory needs to be refreshed at a trial and it’s good for your lawyer too in getting a full understanding and history of what happened.  If it wasn’t witnessed, your detailed description can enhance your credibility.

Even in a repetitive trauma injury situation like getting carpal tunnel from excessive typing, it’s a good idea to log how often you typed and who could verify this.

Of course, some accidents aren’t witnessed and if that’s the case then you go with what you have.  In those situations though, reporting what happened right away and being consistent with your doctor in telling them what happened will strengthen your credibility. 

With this caller, we declined to get involved because she didn’t sound credible to me.  I asked her why she didn’t file a police report for battery and there wasn’t a real good response.  Had she gone to the police, that investigation would have served as a possible additional witness.  My personal opinion is that it didn’t happen and given that honesty is our #1 feature in a client, we took a pass on representing her or referring her to a lawyer in our network. 

 

The scariest thing on Halloween for injured Illinois workers

Today is Halloween.  If you are an injured worker, you shouldn’t be scared of ghosts, goblins, witches or even an over-abundance of trick-or-treaters coming to your door.  No, the scariest thing to you or any other injured worker in Illinois should be a nurse case manager.

Their title sounds innocent enough and they aren’t all trying to ruin your case, but many of them will do things that they shouldn’t be doing.  The worst offense is that they’ll try to talk to your doctors and convince your doctor that the treatment plan is wrong for you and that another (cheaper) course of action should be taken.

Another frightening thing they will do is try and convince your doctor that you should be working even when your physician has said you should be off of work.

Of course when they do these things it puts your health at risk.  Let’s say your doctor says you can’t return to work because your normal job requires you to regularly lift 50 pounds or more and you have a herniated disc in your back.  So the nurse case manager talks to your doctor and says, “Is it ok if he goes back to work as long as he doesn’t have to do any lifting at all?”  The doctor says yes because that sounds reasonable, but you know that type of job doesn’t exist at your company.  So you go back to work and try not to lift anything, but then your boss is asking for help and calling you a wuss if you refuse.  So you try to help and then make your injury ten times worse when if you had just rested a couple of weeks you would have been 100%.

These nurses do other frightening things like trying to schedule your appointments around your schedule or even telling you that they need to let them in to the exam room with the doctor, even if you are disrobed!!

What’s really frightening is many of these nurse case managers will act as if you have no say in the matter and that they are doing this all with your best interests in mind.  Of course they are really just concerned about the bottom line of the insurance company and saving them money.  They aren’t thinking about your health.

Beyond that, you do have a say in the matter.  Many of these case managers will discourage you from hiring a lawyer because they know that the second we get on the case, we are going to prevent them from abusing you.  The first thing a good attorney will do is standup for their client and that’s something that should exist throughout a case.  Unless we give permission otherwise, they are not supposed to do anything other than request copies of medical records and bills.  All the other stuff is nonsense and abusive and we typically put a stop to it right away.  We certainly wouldn’t want them in the exam room with you or talking directly to your doctor.

So be scared, but not too scared. Just as I used to tell my kids when they were young that there was nothing to worry about at night when the lights were off, you don’t have to worry about this interference in your case.  That is you don’t have to worry as long as you know your rights.  And enforce them.

 

This is the best time of year to settle your Illinois workers' compensation case

Fair or not, sometimes Illinois workers’ compensation law is a game.  You are looking at your case based on how it affects your life because, after all, it’s your life and health that is being messed with when you get hurt while working.

But from the insurance company standpoint, specifically the adjuster who usually is in charge of settling your case, they are looking out for their own financial well being.  For many of them, that means getting a bonus based on the number of cases that they close by the end of the year.

A lot of insurance company workers don’t get paid based on how good of a job they do, but instead based on how many files they are able to move.  So while they won’t just give you whatever you want, they are thinking of themselves this time of year, so if there is a case they can settle, they will.

In the insurance industry (and I know this from my former days as a defense attorney) there is a saying that there is no good file other than a closed file.  When your case is open that means they are paying lawyer or nurse case managers or investigators and possibly more medical bills.  Insurance companies like fixed numbers, not the possibility of having to pay more. 

So what happens is that the insurance adjuster will set what is called a reserve on your case.  That in plain English is the most that they expect to spend on your claim.  If they stay below the reserve number, they can usually close a case without having to get the approval of a supervisor.  And if they close your file and a bunch of others, that’s more money in their pocket for Christmas presents or a trip or whatever. 

Beyond that, they are really getting pressure at this time of year from their supervisors to move files because they supervisors also get compensated this way.  So we’ll see a lot of “settlement days” this time of year where they’ll meet with attorneys en masse and try to work out a lot of cases.

Now you don’t want to even think about settling if you are still under medical care or not working due to an injury. But if your back to work and don’t need to see the doctor again, your attorney should really be pushing for a settlement and be aggressive about it.

Come spring time, the insurance company will not be as anxious to get rid of you.  They’ll settle if it makes sense, but at this time of the year, they’ll practically beg you to do it.

I remember once long ago an adjuster telling me that she’d settle for what I asked for – which was more than the case was worth – but only if I promised to have the contracts approved before the end of the year.  That was really the first time I realized how the business really works and I’ve seen it many times since.

So if you do want a settlement, remember, there is no better time of year than now to make it happen.

 

Do your TTD and Medical benefits continue before a settlement is approved?

A reader of my blog contacted me because he had a question about the settlement of his Illinois workers’ compensation case.  To be clear, his claim is not being handled by my office or anyone that I recommend in my state wide network of attorneys.  But like many readers, he contacted me because he knows I will answer questions.

The gist of his complaint is that his case was settled in July and it is now October and he still hasn’t been paid the settlement.  Before he agreed to settle, he was receiving TTD benefits and had occasional medical treatment that is no longer being paid.

First off, I question why he would settle his case if he was still receiving medical care and being paid for being off of work.  If he is, then the settlement contracts should be for a larger dollar amount and there needs to be some built in protection for his medical costs.  If he was my client, I would want to know that he has a suitable job waiting for him that he can work and will not cause a big wage loss.  In the alternative, I’d want to know that this is really best for him.  For example, some clients have moved out of state to be closer to family with the settlement they’ve received.

So it’s unusual to settle in this type of situation, but not unheard of if the dollar amount is fair and in your best interests, not that of your lawyer or the insurance company.

But if you are going to settle a case while you are getting paid, you should insist that a clause be inserted in to the contract that will require the insurance company to pay you up until the approval date by an arbitrator.  This will protect you if there are delays and will motivate the insurance company attorney to act fast.

We typically use this type of clause when we’ve gone to trial on a case and won and have a client that is receiving weekly benefits for something like a wage differential or permanent disability.  Typically what happens is someone in the insurance company after a year or two has gone by will contact your lawyer and ask to settle the case outright.  They don’t always do that after the trial, but eventually an underwriter comes in and wants to get the case off their books so they agree to settle for a fair amount.

When that happens, we’ll insist that the weekly benefit checks be continued until the contract is approved.   Otherwise you are likely going to lose out on a few thousand dollars while some paper pushers are dotting their I’s and crossing their T’s.  That’s their problem, not yours and you shouldn’t suffer as a result.

What’s insane about the question from this reader is that I can’t imagine any circumstance where the insurance company wouldn’t have agreed to continue TTD benefits has his attorney asked for it.  They have no leverage in this situation because if the settlement goes away, they still are paying TTD.

My guess is that the attorney didn’t want to risk losing a settlement so instead of acting in the best interests of his client, he acted in his own best interests.  Which is rather sad.

 

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Workers' compensation benefits in Illinois after a death

A reader asked the following:

My husband was on workers compensation and after awhile died of heart attack.  The compensation for the claim settlement never came about even though he was deemed disable from work injury.  I was told that since he died the claim was closed and I was not entitled to any claim compensation.  Is that true?

I don’t claim to be the best attorney in the world, but it stuns me how many incompetent ones are out there.  This is not true.  If you have a work injury and die of unrelated causes, your estate can make a claim for a settlement.

My guess is that the lawyer who handled this case isn’t actually incompetent, but rather just not very experienced with Illinois workers’ compensation claims.

In some personal injury claims, if you die of unrelated causes after an accident, the case is pretty much done.  I’d bet a nickel that the lawyer here is more of an auto accident guy that a work comp guy. 

In Illinois, we attorneys are not by law allowed to call ourselves experts or specialists.  But just as you would look for a doctor that focuses on one area of medicine, you should be seeking a firm that focuses primarily on work injuries.  When you get someone that is more of a jack of all trades, that’s when trouble starts.

We can’t promise you a result, but we do guarantee that every lawyer in our state-wide network of attorneys has a primary focus on representing injured workers.  That, in my opinion, is the first step toward having a successful case result.  Of course they also provide great customer service which shouldn’t be that hard, but for whatever reason is for many firms.  By that I mean the lawyers I work with and recommend will return your phone calls, explain the law to you and fight to get the best result possible.

When you have an attorney like this, you don’t need to worry about simple questions, such as what happens to a case when a worker dies, being answered incorrectly.

On another note, in a case like this, I’d want to know if the job injury somehow contributed to the heart attack.  Perhaps the decedent gained a ton of wait after his injury and that contributed to his death.  Perhaps the medication he was on played a role.  Maybe it was nothing, but you always want to try and overturn every stone to see what might be there.  If in fact the job accident contributed to the heart attack, his widow could be entitled to hundreds of thousands of dollars.  It all goes back to the point of getting an advocate for your case that knows what they are doing.

 

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