When you file an Illinois workers’ compensation claim with the Illinois Workers’ Compensation Commission, your case gets assigned to an Arbitrator. This Arbitrator is essentially your Judge as there aren’t jury trials in the work comp system.
Every 90 days or so, your case will be up on his monthly status call. At this time your lawyer can file a motion for a hearing/trial. If you have an emergency situation such as not getting approval for medical care, your lawyer can also file a motion for an immediate hearing at any time so long as you give the other side 15 days notice.
Those types of emergency motions happen all of the time. But while injured workers expect that they will get their day in court, they get frustrated when that doesn’t actually happen. So people call us all of the time asking for insight as to when their case will go to trial.
The short answer is that it will happen when the case is ready and your lawyer is willing. That of course requires a longer explanation.
In most cases, a trial is needed because there is a dispute as to what is wrong with you and/or if it’s work-related. Typically your doctor is in your corner and the insurance company has an IME doctor who said whatever the insurance company wants. To go to trial, you need the testimony of both of those doctors. They don’t testify live in court, but instead, do it via deposition.
These depositions require your attorney and the insurance company’s attorney to schedule and pay for them. Most doctors will schedule depositions once a week because they don’t like them. So if a doctor does his on Wednesdays at 5:00 p.m., but is booked for the next six weeks, it will be nearly two months before that deposition will take place. That will of course cause a delay in your trial. And that assumes both attorneys are available on that date and time.
And that’s just one of the depositions. Then the other doctor has to be deposed. Beyond that, your lawyer needs to secure all of your medical records and bills by subpoena in order to properly enter them into evidence at trial.
If you are thinking, “The depositions are done and my lawyer has all of my records. That means we are going to trial this month, right?” Not necessarily. The Arbitrator may have other cases set for trial that day. At most, they can do two trials in a day. If five people are ready for trial, 3-4 of them aren’t going to get to. That sucks, but it’s honest.
The other issue could be if you need witnesses that saw your accident. Most Arbitrators want everyone testifying on the same day. We’ve seen cases where people refuse to testify and have to be subpoenaed. We’ve seen some where the witness lives out of state and has to be flown in. You will only do that if you know for certain a case is going to trial. So the Arbitrator might pick a day in 30-60 days to give you time to arrange that.
And even with all of this, we’ve seen trial delays due to terrible winter weather, one of the lawyers having a family emergency, the Arbitrator getting sick, security breaches at the courthouse, etc.
If you don’t have an emergency situation but want a trial to get an award for the extent of your injuries, all of the above is true except that you have lower priority than the emergency cases.
Reading this post I’m sure is frustrating, but not all is lost. The reality is that if you have a caring and organized attorney in your corner, they will get the depositions done and get your case ready for trial. They will also push for a pre-trial in which the Arbitrator could put pressure on the insurance company to settle and not fight a losing battle.
This is why one of the first questions you should ask any work comp lawyer is, “How many cases did you take to trial last year?” If the answer is none or just a couple it’s a red flag. A good lawyer will look to avoid trial if they can, but will get you your day in court if it’s needed. If they are never doing that, you might end up one of those people who goes without work comp benefits for over a year.