The Long And Winding Road of Workers’ Compensation

How long will my case take?

I get this question all the time. I’ll bet, over the past thirty-four years of handling personal injury and workers’ compensation cases, I have answered this question thousands of times.

Of course, since I’m a lawyer, the answer is mostly “it depends.” Personal injury and workers’ compensation cases can take varying lengths of time based on a multitude of factors. Everything from how it happened, who the insurance company is, how badly injured the client is, and at least another dozen things, affects how long the case will take to resolve.

Some personal injury cases are resolved pre-litigation, meaning no lawsuit needs to be filed. Even in these cases it can be months, even years, before a case is settled.

Workers’ compensation cases vary widely. There are no filing fees, so I always file the Application for Adjustment of Claim as soon as possible. But I still have to wait until my client is healed, then obtain their medical records, submit a settlement demand to the adjuster or opposing lawyer, wait for them to review and respond to it, present it to my client, then decide whether to proceed to trial or continue negotiations, before it’s over. At the bare minimum, it’s several months, in the best case scenario.

Workers’ compensation matters are not handled in the regular county court system; they have their own and wildly different system. If a lawyer doesn’t handle workers’ compensation regularly, they will be out over their skis before they even start. And that’s for lawyers. Non-lawyers who can handle their own cases correctly and efficiently, while protecting their interests perfectly, are extremely rare. Few people are comfortable navigating a complicated legal process on their own while they are injured.

But can it really take three years to resolve a workers’ compensation case?

The Long and Winding Road

One can debate whether the Long and Winding Road, a cut off the Beatles last (well, actually, it was recorded before Abbey Road, but released after) album, is a cheesy, overproduced, melancholic ballad, or a beautiful song of longing. Let’s just say I could do without the Phil Spector-esque wall of strings and schmaltz.

But I digress.

How in the world could a case take three years? And here’s the kicker: it took more than a year and a half from the day the case was settled until the client received her money.

Why? How? What went wrong?

People are Going to Act Like The Fallible Humans They Are

B’s case was a relatively simple one. In March of 2021, B, a nurse in her 60s, fell while assisting a patient. As she got to the automatic doors, they opened, but a floor mat was curled up, and she tripped and fell, injuring her right (dominant) shoulder. It was a rotator cuff tear requiring surgical repair and a long recovery with lots of physical therapy.

B and I evaluated the case from both a workers’ compensation and personal injury perspective. Because her employer likely owned the building where she fell, and because it involved difficult proof of liability, we decided to only pursue the workers’ compensation case.

An additional MRI was needed to rule out a new tear in her shoulder. Once she was healthy and back to work, I obtained the medical records and submitted a demand.

That demand was submitted a year after her fall, in March of 2022.

Then I waited. And waited. And waited some more.

I called, emailed, wrote letters, did everything I could to “remind” the opposing lawyer and adjuster that they had my demand and had not responded to it. I received some responses, often weeks or months later, with varying degrees of excuses of “really busy,” “need to discuss with supervisor,” or “have no authority yet.”

Could I have motioned this up for trial to get them moving? Yeah, but to really get things ready for trial would have required an expenditure of a few thousand dollars to depose the treating doctor. Besides, this was during the pandemic, and there was no way to appear live to push things in front of the arbitrator. Whatever system the Illinois Workers’ Compensation Commission had developed, it was a hodgepodge of live proceedings and Zoom, with very little way to force anyone to do anything. It was a perfect storm of inaction.

So I stuck with my constant reminders, badgering, threatening letters.Eventually, it worked, and we quickly resolved the case satisfactorily.

Of course there was a catch.

While the opposing lawyer and I settled the case in December of 2022, the case required a Medicare Set Aside (MSA).

MSA—Multiple Screw-Ups and Aggravations

Medicare Set Asides, or MSAs, are used when an injured worker is receiving or eligible for Medicare and will require future medical care. It protects Medicare from paying for future medical care that is basically someone else’s (the injured worker’s employer) fault.

An MSA forces the employer’s insurance carrier to set aside money to be used for future medical care—it factors in everything from aspirin and anti-inflammatories, to MRIs, to future surgery (in B’s case, there was indication that a future shoulder replacement would be needed).

In addition to requiring an outside vendor (hired by the employer’s insurer) to assess the amounts needed in the MSA, a lot of medical and prescription records had to be submitted to Medicare for approval.

Someone dropped the ball on this multiple times. We will never know exactly what went wrong, although I have my suspicions.

At any rate, I had my client obtain her pharmacy records at least two separate times.

When the other side first asked me for her to obtain them, it was mid-2023. Why they didn’t realize they needed these for over six months is red flag number one.

Then, I kept following up regularly, wondering whether the Medicare Set Aside had been approved by Medicare yet.

Crickets.

Finally, I learned that the opposing lawyer was never going to respond because either he didn’t know anything or because he knew he had screwed up. And the adjuster never responded because, unbeknownst to me, she was no longer with the company.

When we located the new adjuster, I pushed her to get the MSA approved. Unfortunately, it was rejected by Medicare because the pharmacy records were out of date!

We had to go get updated pharmacy records!

Once that happened, the MSA was approved within weeks.

And within a few days after that, the settlement contract was drafted, signed, submitted, and approved by the arbitrator.

In other words, it never should have taken this long.

People are human. They are overburdened. They miss things. They forget things. They drop balls.

Can you imagine how long this would have taken if I hadn’t followed up constantly? Can you imagine navigating this without a lawyer?

Takeaways

• Injury cases do not resolve in a fixed time period. Many factors affect the pendency of a case
• Workers’ compensation cases are a particularly odd type of matter that is not handled in the regular court system
• The pandemic affected how long it took cases to resolve
• Human beings involved in the resolution of any case can make mistakes or omissions that make things take longer
• Having a lawyer on your side can help protect your interests and move things along more quickly

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury, dog bites or injuries, workers’ compensation, medical malpractice, or other injury and potential liability, if you have been injured at work immediately get medical treatment, report the injury to your employer and your own insurance company, and contact a lawyer with expertise in your type of case, such as workers’ compensation.

If you've been hurt at work and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front, and he only gets paid if you do. Don’t wait another day; contact Stephen now.