What to expect at a Workers’ Compensation Trial

You should not expect a jury. You should not expect to have an audience. You should probably not expect to have your own petitioners’ or respondents’ table. Workers’ Compensation is not like other areas of law. Your trial for workers’ Compensation will likely be a fairly intimate event. That is, you will probably be in a small room with one large table and barely enough chairs for everyone that has to crowd inside. If it weren’t for a court reporter quietly sitting in the corner, the entire process would seem a bit illegitimate. But it is actually a trial.  You and other witnesses are sworn in and there is direct examination and cross-examination, but you will not hear an opening statement or a closing argument. In fact, after all the testimony, the entire process feels somewhat unfinished. However, even though the opportunity to introduce evidence has closed, the attorneys still have to submit what is call a decision to the Arbitrator. That document, however, is not so much argumentative as it is conclusory (with a bias towards the represented party, of course). 

The workers’ compensation trial lacks the bells and whistles and the pomp and circumstance of a trial in, for example, a criminal or personal injury law case.  But maybe that is for the best.  It tends to be a more casual environment, designed to simply get to the evidence in an expeditious manner.  Do not be surprised if the Arbitrator himself asks you questions.  The advantage of all this, of course, is that workers’ compensation trials are often quick and efficient.  Now…if only getting there was that way!

The Time on your Hands (or any other body part)

When we talk about the time frame after your work injury in which you must file a claim, or risk losing your rights to any recovery, we are referring to the Statute of Limitations (“SOL”).  In comparison to other areas of law, the SOL in Workers’ Compensation is fairly generous. Generally speaking, an injured person has two years from the last date of compensation received because of the injury, or three years from the date of injury, which ever is longer.  

The definition of compensation in this case has been determined by the courts to include not only payment of Temporary Total Disability (“TTD”) and Temporary Partial Disability (“TPD”), but also payment of medical bills for the work injury even if that medical bill was paid by the worker’s private group insurance.  For example, if a person had a work injury on November 01 of 2008, it would now be too late to file a claim for that injury unless he had received a check for TTD or TPD OR unless there had been a payment made to a medical provider on, roughly on October 31 of 2009 or after.   

There are also other acts, such as misleading or fraudulent actions or statements made by the adjusters that could result in stopping the clock and giving an injured worker more time.  However, an unrepresented injured worker runs the risk of missing that deadline, since, in general, the adjuster has no duty to inform the injured worker when the deadline to file is.  It is not unheard of that an injured worker patiently waits for an adjuster to begin discussing the final settlement only to hear from no one and find that the deadline to file a claim and preserve the case has expired.   The injured worker should not assume that the adjuster is looking for him.  In fact, it is just the opposite. The adjuster works for the insurance company and their primary goal is to limit the amount of money they pay to that, and every other, injured worker that begins the workers’ compensation system. 

The preceding paragraphs are generalized information regarding the amount of time you have to file a claim.  There are a couple of exceptions for certain kinds of injuries.  Every case is unique and should be evaluated on its owns facts.  You should not assume that the above information pertains to your case and you should consult with an attorney regarding your specific case if you have any questions.  We would be happy to provide a free consultation.  Please contact Workers’ Compensation Team at BGSL today by calling 815 338-3838.

An Injury At Work Does Not Automatically Mean You Have A Workers’ Compensation Case

That premise sounds contradictory, however it is at the basis of one of the prongs of Workers’ Compensation law: whether an accident has occurred. In order to be successful in establishing a workers’ compensation case, the injured person must show that the injury occurred ”arising out of” and “in the course of” the employment. In other words, the employee must be engaged in the duties of his/her employment and be injured by the incidental risks associated with those duties. These two facets, however, are interpreted liberally. Even so, there must be some limitations in what is covered. While the drafters of this area of law sought to design a system where workers would have financial security without having to show that the employer was at fault, it, at the same time, protected the employer because this system took the employees out of the general tort arena and limited the employers’ exposure to damages.

Let’s take the simple example of an employee falling down in the parking lot of the business where she works.  It turns out, this is not such a simple example, after all.  There are many factors that are considered in determining if the resulting injury is compensable under Workers’ Compensation law.  Generally speaking, the following must be true:

1) The employer must own or lease the parking lot for use of its employees;

2) The parking lot must not be open to the general public, unless the employer assigns  the employees specific spaces in that lot.

3) The injury must be incidental to the anticipated normal use of the parking lot.

4) The injury must have occurred within a reasonable time before or after work.

5) The employee must have been exposed to a risk greater than that of the general public. 

If the above factors are not in place, it is very likely that the injury will not be covered by workers’ compensation.  However, please keep in mind that every case is unique and should be evaluated on its own merits.  The preceding information is a very broad look at workers’ compensation. For specific answers to your workers’ compensation case, please consult with an attorney.

The “Compensation” in Workers’ Compensation

Often people equate an injury with the potential for a lot of money. Unfortunately, if your injury occurred at work, the workers’ compensation system limits the amount of money you can be awarded. In short, the idea of pain and suffering and loss of normal life do not exist in workers’ compensation as they exist in personal injury cases. In the simplest terms, you are only entitled to what you would have earned had you not been injured in the first place, and your injury only entitles you to an award based on the degree of injury insofar as it affects your job in the future.

In most cases, this comes down to three potential types of compensation: payment of all medical bills that are reasonble and necessary, temporary total disability (“TTD”), and permanent partial disability (“PPD”).

The last two factors, TTD and PPD, are limited by rules unique to the area of workers’ compensation. The amount of TTD you get depends on what you were earning, and how long you were unable to work. PPD is controlled not only on your wage, but by the body part that was injured and the degree of your disabilty. Clearly, this is an overly simplistic review of potential awards in workers’ compensation, but the bottom line is that this system is designed to make you whole only in relation to your ability to complete the job you had at the time of the injury.

Since there are quite a few fixed variables in workers’ compensation, the job of your attorney is to maximize the variables that can be changed. It is safe to say that if you do not have an attorney, those variables would be calculated at the low end of the spectrum in favor of your employer.

Please call the attorneys at Botto Gilbert Schottland Lancaster with any questions relating to personal injury.  Our Workers’ compensation team is experienced and knowledgeable.  You will be treated with respect and compassion. 

 

The above information is not intended as legal advice and does not create and attorney/client relationship.  Please consult with an attorney for any legal questions you may have. 

 

Do I need a Lawyer for a Workers’ Compensation case?

The short answer is…no. But here’s the long answer:

It is always a good idea to discuss your case with an attorney. You should keep in mind that the insurance company has attorneys ready and willing to fight for them. Shouldn’t you?

You should be aware that the insurance company and the employer do not necessarily have your best interests in mind. The insurance company wants to pay as little as possible and the employer doesn’t want his rates to go up. They have no reason to maximize your compensation. Rather, they may offer you substantially less than what your case could be worth…no matter how prompt or pleasant the adjuster may be.

If you decide to speak with an attorney it is important that they are knowledgeable in the area of Workers’ Compensation. Botto Gilbert Schottland Lancaster has been in practice for thirty years. Our Workers’ Compensation Team is experienced and forthright. Feel free to make an appointment for a free consultation. There will be no obligation to retain us and we will be up front with you about what you may gain or lose with representation.

Hiring an attorney does not mean that you are “out to get” your employer. It just means that you want a fair resolution to your case After all, workers’ compensation is an area of law designed to compensate you for the work you were unable to do or will not be able to do in the future. There is no award for “pain and suffering.” We will fight so that receive your deserved compensation. Call us today if you or someone you know has a question: (815) 338-3838

Workers Beware!

Recently, Governor Quinn signed into law Public Act 097-0018, causing a major overhaul of the Workers’ Compensation system in the state of Illinois.  As an employee, many of these changes will not necessarily change how much money ends up in your pockets, and the process is still largely the same.  However, one area where employees will have to be extra vigilent in is in their choice of treatment providers. 

Prior to this overhaul, an injured worker could choose up to two completely “fresh” treaters.  That is, if you went to one doctor and just flat out didn’t like him, you could go to a completely different doctor without needing a referral.  The new law creates a Perferred Provider Program (“PPP”) which will be a list of doctors approved by the Department of Insurance.  If your Employer opts into this PPP– and you must be notified in writing that they are opting in–you must then choose a doctor among this list or forfeit one of your choices.  In other words, choosing not to use the PPP is considered a choice and you may then only choose one doctor outside the PPP.  The referral chain remains alive and well, though, so if the doctor you choose refers you to another treater, your treatment should be covered. 

It is important to remember that the employer must opt into the PPP. If they do not, you are under the same system as before.  It is also worth noting that despite the fact that this law went into effect on September 01, as of October 7, there are no doctors yet on the PPP. 

The bottom line is that injured employees need to be extra careful about how and where they seek treatment.   The last thing an injured worker needs is to have thousands of dollars worth of treatment that the workers’ compensation insurance will not cover. 

If you have any questions about this topic, or any other Workers’ Compensation issue, please do not hesitate to contact our Workers’ Compensation Team: (815) 338-3838. 

Botto Gilbert Schottland Lancaster is a limited general practice law firm located in Woodstock, Illinois.  We handle workers’ compensation cases in Lake, McHenry, Boone, Winnebago, Kane and Cook counties including but not limited to Crystal Lake, McHenry, Harvard, Waukegan, Gurnee, Marengo, Belividere, Rockford, Richmond, Spring Grove, Hebron, Algonquin, Lake in the Hills, Elgin, West Dundee, Carpentersville, Woodstock, Round Lake, Batavia, Poplar Grove, Deerfield and Huntley.