I had a very nice call with a woman regarding her father’s case.  She asked us to take it over which we declined because there was already a very significant settlement offer on the table and the case was over five years old.
However, in the course of discussing the case, she told me that the lawyer told her that they had to settle or go to trial this fall because the insurance company wouldn’t agree to any more continuances.  Of great importance, her Dad is still under going active medical care for his back injury and is getting paid for his time off of work as he has been the entire time.
So while it wasn’t the original purpose of the call – I was told that they realized their lawyer has zero experience with Illinois work comp trials -,  this statement was a big red flag.
From the time a case is filed, it has three years until it is “above the line.”  That’s a random legal term.  Basically it means that after three years, your case has to be set for trial unless you can show the Arbitrator that you are still receiving treatment and benefits.  It’s a way to prevent cases from sitting around forever.  If there were no lazy lawyers it wouldn’t be needed because if you want to get a hearing date, you can pretty much do so at any time.  The rule exists to prevent attorneys with huge caseloads or no interest in their clients from taking forever.  It’s actually quite shocking how many cases get settled after three years even when they could have been resolved a long time ago with minimal effort.
But in the caller’s case, they don’t have to go to trial because they still have an active case.  There are a handful of cases from the 1990’s still floating around the Illinois Workers’ Compensation Commission.  I don’t expect that this case will take that long, but it’s not uncommon in a major injury to get cases continued after the three year point.
So what happened is one of two things:  1. The lawyer lied to his client because he wants to get the case over with (there is a settlement offer in excess of $200,000).  2. The insurance company is calling the shots because this attorney is very inexperienced.
Whatever happened, it’s awful.  I tend to think it’s a matter of him not knowing the law so the insurance company, who badly wants to close out the case so they can stop paying on it, pushing him around.
For you, rest assured that if you are healthy and ready to settle or your benefits are denied, your attorney can file a trial motion at any time for you.  And if you aren’t healthy and still receiving compensation from the insurance company, your case can continue on past the three year deadline.  Every claim is different and needs to be looked at on its own merits.

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By Michael Helfand