When it comes to working with an Illinois workers compensation attorney, there isn’t a worse feeling than realizing that the lawyer you hired isn’t fighting for you.  You hired them in the first place to be your advocate and look out for your best interests.  If they aren’t doing that, then what are they there for?

Sometimes it’s obvious that they aren’t fighting for you. They don’t have any suggestions. They won’t file any trial motions. They generally seem to just roll over and do nothing.

Other times it’s more subtle.  Case in point, a recent case we consulted on.

A factory worker has a really serious back injury. He had surgery and there is not dispute that his back was injured in a work related accident. There is a $75,000.00 offer to resolve that case and all of the medical bills have been paid.  At first glance it doesn’t seem to be a case of a lawyer not fighting for their client.

A closer look shows this worker also hit his head when the accident happened. He complained of a headache at the ER, but because his back injury was so serious, the majority of his medical care in the first six months focused on that.  There was some belief that his back problem was causing headaches, but that turned out not to be the case as the headaches didn’t go away after the surgery.

He asked his lawyer to help in getting him in to a neurologist and the lawyer refused. The worker found one on his own and paid for the treatment out of pocket. That doctor states that there was a traumatic brain injury (TBI) during the work accident and that this worker can no longer return to his job.  That could make the case worth hundreds of thousands more.

The lawyer said he doesn’t think they can win the brain injury part of the case and is encouraging him to take $75,000.  That is a terrible settlement strategy.

The worst case scenario if they go to trial is somewhere around the $75,000.00 he’s been offered already.  The best case would be an Arbitrator awards what will amount to around $300,000.00.  Now the lawyer might think there’s only a 10% chance of prevailing. But with the report from the neurologist, he can do many things that will get more money in the hands of his client.

  1. Make a settlement demand based on the neurologist saying this person can’t work anymore.
  2. This strategy will force the insurance company to get an independent medical exam to address the head injury and if it’s work related.
  3. If that doctor says no then their position isn’t any worse off.
  4. If that doctor says yes, suddenly the settlement value of this case has at least tripled and it cost nothing to try that.  While most IME doctors are hired guns, I’ve seen this happen many times before, especially for areas of medicine like neurology.
  5. Even if the IME is against them, they now have some leverage to get a higher settlement. If the likely trial outcome is $75,000 and your lawyer used the possibility of winning the head injury part of the case to get you $125,000, that’s a huge win.

It was terrible settlement strategy by this attorney to not go this route at all.  There’s no guarantee it will work, but it has to be tried. And it truly shows a lack of understanding about how insurance companies and their lawyers work.  The defense attorney never wants to say a trial victory is guaranteed. So they have to lay out the best and worse case scenarios too. If they say it’s a 25% chance they’d lose everything at trial, then some insurance person will likely not want to risk that happening and will authorize more money to settle. It won’t come close to your full best case scenario, but it should be more than your worst case scenario.

The bottom line is that even with everything this attorney got for his client on the back injury, he wasn’t really fighting for him and his bad settlement strategy was the proof.