The other day we blogged part 1 of why you might lose a work comp trial. Here is part two. The key thing to remember is that while your case may appear strong, there is no such thing as a guaranteed win. These are the next five reasons why you might lose a trial.
6. You delayed seeking medical treatment for too long. We represent a lot of laborers and a lot of retired soldiers. These are some of the toughest men and women you’ll ever meet and they are usually great clients because all they really want is to be treated fair, get healthy and get back to work. Sometimes they are too tough for their own good. For example, it’s not uncommon to find a guy that feels a pop in his back while working. This has happened to him before and he just keeps working through the pain. Finally after six months he goes to the doctor, but during that time he’s continued to work and do stuff like play softball or go bowling with his buddies until the pain was too much. On cross examination at trial, the defense attorney makes it appear that the original injury couldn’t have been too bad because two seasons passed without you ever seeking help and during that time you were able to live your normal life. If he can knock some holes in your story then the Arbitrator may believe you were really hurt doing something else.
7. You don’t know your rights. At least ten times a year someone will tell me that they never knew that they could even pursue an Illinois work comp case. It’s typically when someone has a repetitive trauma injury such as carpal tunnel syndrome or a back injury from lifting heavy stuff day after day. Usually we can help these people, but every now and then we come across someone who has waited too long to bring a case. Ignorance of the law and your rights is not an excuse. If you wait too long it will be too late. Don’t expect your employer or an insurance company to advise you of your rights.
8. The doctor you see takes terrible notes. It’s not a well known fact, but one of the biggest ways a case is decided is based on what you tell your doctor. If you get hurt at work, but your doctor writes down that you were really injured at home, your case is in big trouble. These doctors see hundreds if not thousands of people a year and there is no way in the future they will remember the real story. Sometimes it’s their nurse practitioners who right this stuff down wrong. Basically you tell them something verbally and hours later they realized they didn’t write it down so they take a guess as to what happened. Since these medical providers have no motivation to lie, an Arbitrator will assume that what they wrote down is what you told them. To cover yourself, if you don’t see them writing it down you can ask them. When you are registering, make sure to put down the truth of what happened. It’s shocking how often a case gets messed up because of this. It might not make you lose a trial every time, but it can certainly cause a big concern.
9. It appears that getting hurt on the job is a 2nd career for you. Trials are about two things: Facts and how reliable/credible those facts are. There is no law that limits how many times you can file a claim for getting hurt on the job in Illinois, but imagine two cases: Case one involves a 30 year employee who has never filed an Illinois workers’ compensation claim. In June he falls and hurts his knee. He doesn’t see a doctor until August and that doctor writes down that the patient doesn’t know how he got hurt. On the plus side, your supervisor admits that you did tell him right away that you hurt your knee. At trial you say you waited two months to go to the doctor because you hoped you’d get better and that you said you didn’t know how you got hurt because you assumed that it was from when you fell, but it also could have been from going up and down stairs for 30 years on the job and lifting a ton. I’d take that case to trial any day and I’d bet a nickel that I’d win. The client would appear credible because if he wanted to make up a case, why’d he wait so long. Case two has all of the same facts, except the worker has filed 20 cases in 30 years on the job, even for the most minor of problems. That makes it look like he’s abusing the system. An arbitrator isn’t going to believe that someone like that who is very familiar with the system would wait two months to see a doctor. And he’s also not going to believe that worker wouldn’t know to tell a doctor that the injury happened while working. All of that may be true, but your experience will make you look not credible. I’d bet that at least ½ the time a case happens like that the injured worker will lose. I would never take on that case.
10. Your lawyer is unprepared. Before I became an attorney and went to court, my image of a trial lawyer was someone who is smooth, graceful and ready. They didn’t have to be slick like OJ Simpson’s attorneys, but I never imagined that a lawyer would come to court unprepared. If you sit in on a trial at the Illinois Workers’ Compensation Commission, you are bound to see this happen. It’s shocking to see an attorney go to trial when they literally know nothing about how their client got hurt and what medical treatment they have had. The look on the Arbitrator’s faces when a lawyer is shuffling through papers to figure out what question to ask next is worth a thousand words as is the disgust on the face of the injured worker who realizes that they hired the wrong law firm. If the lawyer hasn’t prepared themselves, you can bet that they haven’t prepared the client either for what questions to expect from opposing counsel. Some of these guys have been doing it for so long that they don’t think they need to prepare and others just don’t care. The bigger worry is that they are un-organized when it comes to submitting your medical bills and medical records. I remember one case where an injured worker “won” the trial, but later learned that his attorney didn’t submit around $70,000 in unpaid medical bills. Oops. That worker was screwed and had to sue his attorney for legal malpractice to try and recover for the bills that he had to pay out of his own pocket. There have been other cases where a lawyer went to trial but failed to subpoena and submit treating medical records as evidence. How can you prove what medical treatment you had if you don’t show it to the Arbitrator? You can’t. If your lawyer doesn’t talk to you in advance of trial and tell you what questions they are going to ask, it’s a big red flag. And it may be why you lose even though with a semi-competent attorney in your corner the case would have been a slam dunk.
I could probably come up with 100 other reasons, but the ones I listed are certainly the most common. In fact it’s often why some attorneys are afraid of trial and make their clients take a bad settlement. We never promise a client a result, but we do guarantee that we’ll never lose a case because we didn’t prepare you or ourselves. Every attorney I work with and recommend is the same way.
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