Are New Laws Hurting Old Cases?
September 1, 2011 arrived, and along with it came the effective date of the changes to the Illinois Workers’ Compensation laws. Work injuries that happened on that date and beyond will be treated according to the new rules. Some of the changes are somewhat significant, some might not amount to much after all is said and done. But as lawyers are getting their feet wet in handling cases under the new law, perhaps the most significant aspect of the change, is the newness itself.
What I mean by this, is that along with the changes in the law, comes a period of relative uncertainty. Lawyers cannot be completely sure how their clients’ injuries will be valued by the Arbitrators hearing workers’ compensation cases. Under the new law, the American Medical Association (AMA) guidelines will factor in to determine the level of disability, along with other objective criteria. These new standards may affect how Arbitrators view what cases are worth--they may be lowered; though likely there will not be a significant shift in case values. Already though, we have seen insurance companies trying to go for the jugular and lower the value of what we think the case is worth.
But regardless of the eventual outcome, right now lawyers are hard at work fighting for those new cases, trying to establish that they have not declined in what they are worth. And insurance companies are certainly pushing for trials too as is there right. While maximum effort is going into testing the new system, clients--particularly those with older cases--might be the ones to suffer if they have the wrong attorney.
Whether or not a case goes to trial or settles, should always be a decision made with regard to the client’s best interest. But there is only so much time for cases going to trial. And a lot of lawyers don’t particularly care for the amount of time and work that goes into the trial process anyway, given the relatively small difference in money for them. What you’re left with, then, is a lot of new cases being given maximum effort, and not necessarily settling, while older cases are being settled rather than taking the time to go to trial even if that would have been most desirable.
Now, I’m not saying that all or even most lawyers are lazy, and don’t protect their clients’ best interest. Most are honest and hard-working. But among those that are older and feeling burned out, particularly by the prospect of the changes in the law and how they affect the new cases, it can seem attractive to reach a settlement in a pre-September 2011 case that isn’t necessarily in the best interests of the client.
I thought of this post after a recent phone call where it appeared the value of a case was around $50,000 on the low end and $300,000 on the high end if the client was proven to have a wage loss from his injury. The attorney he had hired was telling him to take $100,000 because that was the most that the defendant would ever offer.
If the most an insurance company will offer appears to be way too low, you have an option which is to go to trial. A case like this would require multiple depositions and preparation, plus all day in court for a hearing with an Arbitrator. That’s lots of work, but the payoff at the end if you win would be huge for both the attorney and the client. It’s possible the client would end up with only 50k and they should know the risks. But to roll over when with a little hard work you can do so much better for a client is shameful.
Now of course it’s not just the new laws that are making some attorneys lazy. But they aren’t helping and it’s innocent clients who suffer.
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