There are so many things about Illinois Workers’ Compensation Law that are so far removed from what court cases are like on TV or in the movies. For newcomers who have never experienced this reality before, it can be real shocking. One of the biggest surprises for injured workers in Illinois is learning that a case being set for trial doesn’t mean you are going to trial even if you want to and the case doesn’t settle.
In work comp cases, you would go to trial for two main reasons. The first would be because your benefits have been denied and you want the Arbitrator to decide if you are entitled to medical care and TTD payments at the expense of the insurance company for your employer. This is called a petition for immediate hearing or 19(b) trial. It’s not a trial that ends the case, but typically one that decides if your injuries and need for treatment are work related and if your doctor’s plan is reasonable. The second trial is when you are all better or as good as you are going to get. Those trials are to determine the case value and sometimes to deal with disputed issues that have arose during the case. For example, there might be unpaid bills or a couple of weeks unpaid time off.
What surprises workers is that trials, especially the 19(b) ones, will get set all of the time and nothing will really happen. In fact, it’s not unusual for an Arbitrator to have 10 or more cases set for hearing in one day in his courtroom and for none of them to go to trial. This happens for a couple of reasons. 1. Your lawyer isn’t ready to go to trial, meaning they need to take a deposition of your doctor or gather more medical records. They set the case for trial in hopes of negotiating with the other side or to put pressure on them. 2. The defense attorney isn’t ready for trial. Maybe they were just assigned the case. Maybe they want to take a deposition of their doctor or need to arrange witnesses to show up.
A very frustrated caller to our office was upset because her case had been set for trial five months in a row and the defense attorney had gotten a continuance every time. Her simple question was:
How many continuances can a defense attorney get?
There are a few ways to answer it, but if your lawyer is ready for trial then the real one is usually as many times as your attorney will let them get away with it.
If your case is truly ready for trial, and you will know this if your attorney does a practice run on your testimony, the defense attorney is allowed to ask for a continuance. Your lawyer doesn’t have to agree to it, but ultimately it will be the Arbitrator who decides if it will happen. If your case is ready and your attorney agrees to a continuance, they often should only do it if they are getting something out of it for you.
The most common thing they can get is what is called an advancement against permanency. This happens a lot when you haven’t been paid your time off benefits (TTD) and that is one of the disputes at trial. A delay could cause you significant financial and personal harm. So they might give you an advance payment on the settlement they will owe you of a few thousand dollars. Other times that’s not possible so a strong attorney will either push for trial that day or ask the Arbitrator for a “trial date certain.”
In plain English, trial date certain means that the trial will happen on a specific day. So if the other attorney just got the case and needs time to prepare or take a deposition, they have to do it by the trial date typically. It’s not a huge win for you, but it’s actually very common as most cases don’t go to trial the first time they are set to do so. This puts real pressure on the other side and gives you some certainty.
There is no limit to the number of continuances in a case, but I can tell you that for this caller, five was way too many. It showed her lawyer isn’t serious because he wasn’t making a trial happen and her case was still denied. A fighter will get your case ready and get you to trial as soon as possible.