Litigating a Workers' Compensation Claim: The First Step a Claimant's Perspective

This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed March 26, 2008

THE INITIAL CLIENT INTERVIEW
The initial interview is the most important part of beginning a workers' compensation claim. From the initial interview, you should almost find out almost everything you need to know to file the application, proceed with the claim and argue the claim during all parts of the case. During the initial interview you will need to find out whether there was an accident, did the injury arise out of the employment situation, was the injury in the course of your client's employment, was there an employee/employer relationship, is it appropriate to file the claim in Illinois, was there proper notice given and are you within the Statute of Limitations. Other items that need to be included on the Application of Adjustment of Claim, is information that practitioners often forget during an interview, such as the name of the spouse, the names and ages of the children, when the last day worked was and his average weekly wage. The final item that will need to be considered in the initial interview is the practical considerations of whether to accept the client because of financial, personal or other reasons, although sometimes it is best to take the case under advisement.
1. Is there an accident? Accident or accidental injury means every injury suffered in the course of employment, and the Act has been determined to extend the liability of the employer to make compensation for injuries for which he was not previously liable and to limit such compensation. (Moushon v. National Garage, Inc., 137 N.E.2d, 842 (1956)). Certain injuries are traceable to a definite time, place and cause. These causes are the easy ones to determine whether or not there was an accident.
  
  The more difficult cases are those where there was an injury, but it is not traceable to a definite time, place of cause.
  
  The most popular of these would be repetitive trauma. Often times the injured worker will not know exactly how an injury occurred, but believes that it is related to some repetitive motion. Generally in repetitive trauma there is no singular time and a gradual injury. To determine the date of the accident one must find when the condition "manifested itself", which means, when a person reasonably should have known this problem is job related or the last date worked. If one is planning to make a repetitive trauma case, one would need to know the type of exposure to the accident, which includes the nature of activities. For this we need a detailed description of the physical activities performed i.e. pulling tires off a conveyor belt all day long using the flexion and extension of his hands for an 8-hour shift. You will also need to know how long the worker has been doing these activities and how long during each day he has to perform these activities. It would also be good to know the number of repetitions, how much force is required, etc. One would also then ask how this type of activity affects his condition and if it gets better with rest.
2. Did this injury arise out of the course of employment? Arising out of employment are magic words under the Act determining whether or not a claim in compensable. An injury arises out of employment when the risk to the employee is a risk not common to the general public. Generally, it is pretty easy to determine whether an injury arises out of his employment, but there are certain times when more details need to be gathered. For example, if a person is injured falling while walking down steps, this incident may or may not arise out of his employment. If the steps are of normal size and shape with no problems with the step and has a handrail and the employee is not carrying anything, then it would be determined that this is a risk faced by the general public and not compensable. On the other hand, if there is a defect in the steps or the employee is forced to carry a large box of paper while he is walking down the steps, those factors could make the mere fact of walking down the steps compensable.
  
  An injury could also arise of employment if the risk is incidental to or connected with the employment. An example, this incidental risk could be a store clerk's squatting to rearrange items on the lower shelf of the store. This could be compensable, while a secretary squatting to pick up a piece of paper that she dropped from the copy machine may not compensable.
3. Did the injury occur in the course of employment? In the course of employment is also an important phrase under the Act. For this test you must ask questions regarding the time, place and circumstances of the accident. The injury must generally occur at work or in the course of giving some benefit to the employer. An injury is in the course of employment if the injury occurs within a period of employment at a place where employees can reasonably expect to be in performance of his duties while he is performing those duties, or something incidental thereto. Questions at the initial interview should involve the time and place of the accident, whether the accident happened on the premises, and if not why the worker would have been off the premises at the time of the accident. If the worker would be off the premises or not working during the normal time, additional information should be gathered from the prospective client to determine whether or not a compensable claim could be made.
4. Is there an employer/employee relationship? While this issue of employer/employee relationship generally is the easy part in determining whether or not their claim is compensable, the practitioner must be aware of any situations where there might some defense of employee versus independent contractor or a loaned or borrowed employee type situation. This is arising more and more with the use of temporary services as placement companies in the hiring of independent contractors as opposed to employees. The practitioner should make sure to ask questions regarding how the worker is paid, whether taxes are taken out, who has control over the work, whether the employer has control over the schedule, who provides tools and materials for working, and who has the power to discharge.
5. Is Illinois the correct jurisdiction? In general, Illinois has accepted jurisdiction in most claims. The issues would be if the jury occurred in Illinois or whether the worker was hired in Illinois or whether the employment is principally located in Illinois (820 ILCS 305/1(b)(2)). Special questions needs to be asked when the accident takes place on or near a waterway or on or near a railroad, since the Long Shoreman's Act, Jones Act and FELA Act takes priority over any state workers' compensation claim.
6. Was proper notice given to the employer? The employee is required to notify the employer within 45 days of his accident. As a practical matter, to make these claims work, an employee must give notice much sooner than 45 days in order to prove his claim. When doing the initial interview the practitioner should always take note and write down the name or names of persons who the worker gave notice to and whether said notice was oral or written. Notice is jurisdictional to the claim (Section 6(c)) and many practitioners overlook this issue when doing the initial interview.
7. Is this claim within the Statute of Limitations? In general a claim should be filed within three years from the date of the injury. (820 ILCS 305/6 (d)) A claim also can be made within two years from payment of the last payment of compensation. Questions must include what type of compensation was paid, whether it be wages, TTD benefits, or sickness and injury benefits, all of which may extend the Statute of Limitations. Applications for death cases must be filed within three years after the date of the death or if not compensation was paid within two years of the date of the last payment of compensation, whichever is later. Radiological or asbestosis exposure allows 25 years from the date the employee was employed in the environment of hazardous radiological or asbestosis exposure.
  
  Generally, by the end of the interview, the practitioner should be able to determine whether there is a valid claim. He would then have to determine whether or not this was financially feasible by determining the type of injury, the rate to be used and the amount of money that would be necessarily be expended in putting this case on for hearing. If the practitioner decides to sign up the case, at that time he would have the claimant sign the attorney's representation agreement and medical releases so that the attorney can request medical records from the necessary providers. All providers need to be identified at the initial interview so medical can be requested.
GATHERING AND EVALUATING MEDICAL DOCUMENTATION.

There are several methods available to the practitioner to gather medical documentation. The first and easiest way is to have medical releases signed by the worker. Those should not be mailed immediately, as it often takes weeks to have medical records forwarded. Generally, the practitioner should send a certification form, as certified records are admissible without any further proof as evidence of the medical and surgical matters stated therein (820 ILCS 305/16) (See attachment A.) The practitioner should expect to be charged for copies of these records.

The practitioner may also gather medical records by way of subpoena. The Commission allows for subpoenas of records at Section 16. A witness fee pursuant to the Civil Practice Act should accompany the Subpoena. This is sometimes useful when physicians ask large amounts of money for reimbursement for copying charges or where there has been unreasonable delay. (See Attachment B)

A third method for gaining medical records is by requesting them from the workers' compensation carrier. By the time the petitioner has seen the attorney, more likely than not he has already had some medical treatment and a claim has been opened. One of the early requests that a practitioner should make from the adjuster is for copies of all medical records.

Upon receipt of the medical records, it is important that the practitioner actually reads the medical records. The practitioner should make sure that the date alleged during the initial interview matches that of the medical records. It is also necessary to check whether or not the history given to the healthcare providers is consistent with the description of the accident given during the initial interview. (Attachment C)

The other important information that needs to be received by the worker and sometimes from the employer is wage information. Rarely does the employee have adequate information regarding wages. Wage calculations are necessary because both permanent partial disability rate and the temporary total disability rate are determined by using a percentage of the average weekly wage for the 52 week period prior to the date of the accident. Copies of pay stubs, W-2 forms, and calendars from the employees are helpful in making these determinations. Also, requests should be made for payroll information for the period time of 52 weeks prior to the accident from the employer. It is not recommended that the practitioner will take the word of the comp carrier in determining the rate. There is often a difference dramatically from practitioner to practitioner and from adjuster to adjuster in how these calculations are made. In general, it is the average weekly wage for hours worked at straight time for 52 weeks prior to the accident. The tricky part comes when a person has not worked a full 52 weeks, at which time one would divide merely by the number of weeks or days worked. It may also be necessary to ask the worker whether or not he works a part time job or concurrent jobs which the employee is aware. In those events, the worker may also claim that average weekly wage as part of his average weekly wage in determining the rates.

Again, questions whether or not this is financially feasible to take as a case must be asked. Is this a minimum rate case with a situation where you are going to have to take multiple doctors' depositions. If you have a low rate case and you realize that you are going to have to take $800 worth of doctor's depositions for a 3% loss of the use of a man as a whole, then your client is going to be upset because he is not going to get any money out of this case. By this time, you should have also determined whether or not the worker is someone you can work with and can trust and expect will follow your recommendations and instructions. Once you are satisfied that this is a financially feasible case and that the worker is someone that you believe and is someone you can work with on a daily or weekly basis, then the next step would be to file a claim.

An application for Adjustment of Claim (attachment D) should be filed with the Illinois Industrial Commission. An Application must be filed in triplicate and must be filed out completely which includes the description on how the accident occurred, the part of the body injured, the geographic location of the accident, and how notice of the accident was given or acquired by the employer (Rule 720.20(c)) A copy should also be sent to the employer, although the Commission mails a copy of the Application to the Respondent, along with the notice of the initial hearing, at the address supplied by the employee. An Application should cover only one accident or claim. An Application for Adjustment of Claim will be filled out completely and signed by the practitioner and the worker. There is no filing fee, and the forms are furnished free of charge by the Commission. No answer or response of pleading is required.
1. Attorney Representation Agreement. The Workers' Compensation Statute requires that attorney's fees "shall be fixed pursuant to a written contract on forms prescribed by the Commission between the attorney and the employee or his dependents". The attorney must file the Attorney Representation Agreement with the Commission for approval. (820 ILCS 305/16(a)(c). A documented title "Attorney Representation Agreement" must be completed and filed when the employee's attorney enters his appearance Rule 720.309(b). (See Attachment D)
PRELIMINARY OR IMMEDIATE RELIEF
When an employee claims that he sustained his accidental injuries and is unable to work and the carrier or employer denies liability or declines to pay temporary total disability compensation or medical care, the employee's attorney may seek a determination of the employer's liability even though the employee has not reached maximum medical improvement. In this event, Section 19(b) and 19(b-1) of the Act provide remedies for immediate hearing.

Section 19(b) is the most popular, because it avoids elaborate disclosure and discovery processes as well as the strict time restraints as specified in 19(b-1). If a genuine hardship exists, the 19(b-1) procedure should be considered since the final determination must be made within 180 days from the date the petition was filed.
1. Section 19(b) procedure.
2. Forms for Petition for Immediate Hearing are provided by the Commission. The filing of a Petition for Immediate Hearing under 19b causes an assignment and trial of a claim on the next available local call. The petition must state a description of the attempts by the parties or counsel to resolve the dispute requiring the hearing, including the name of the representative of the opposing party with whom the petitioner or his attorney has conferred, the day of the conference, and the result of the conference. The petition also should have a signed physician's report of a recent date relating to the employee's current inability to work, or a description or other evidence of temporary total disability as is appropriate under the circumstances. It is also required to show when such information was delivered to the respondent.
  
  Section 19(b) petitions are set for hearing according to Rule 720.70. The petition should be served on the opposing party 15 days preceding the hearing date set forth in the notice of motion. Rule 720.80a2 provides that the arbitrator to whom the case is assigned shall conduct a pre-trial conference and attempt to resolve the matter informally. If that fails and the arbitrator determines that the employee is not receiving temporary total disability or medical benefits, the case will be ordered to trial on a date certain as soon as possible. Generally, since calls are only one or two days a month, the pre-trial will take place earlier in the day of the call and the trial will take place on the day noticed up in the normal order of trials.
3. Section 19(b-1).
  
  Another method for emergency petitions for payment of medical costs and compensation benefits is the Section 19(b-1) hearing. Again, there is a 15 day notice requirement. On the other hand, a 19(b-1) states that the employee must provide the employer with the detailed information about the claim in a written petition which the employer must receive 15 days before it can be filed. Thereafter, 15 days after receiving notice that the petition has been filed, the employer must file a written response and provide the employee with certain information on which it bases its defense. As you can see, this gives the employer at least 30 days to investigate and respond to an employee's allegations. Generally, 19(b) cases can actually get to hearing faster than a 19(b-1) petition can.
  
  The Petition for Immediate Hearing requirements substantially more information than the 19(b). In the 19(b-1), the date and approximate time of the accident must be included, along with the approximate location of the accident, the description of the accident, the nature of the injury, the identity of the person to whom the injury was reported and date of reporting, the name and title of persons with whom the employee conferred to request payment of compensation benefits or medical costs, and the date of the conference, a statement the employer refused to pay the requested compensation benefits or medical costs; the name and address of each witness to the accident and each other person on whom the employee will rely to support his allegations; the dates of medical treatment related to the accident and the names and addresses of the doctors or hospitals providing the treatment, with a signed authorization permitted the employer to examine all medical records to be attached to the petition; an attached copy of a medical report establishing the employee's current inability to return to work because of the accident, or other documents or affidavits that show that the employee is entitled to receive compensation benefits or medical services, and the prognosis for recovery; attached copies of any reports, records, documents, or affidavits and the position the employee in which the employee will rely to support his allegations; and a list of all documents the employee has demanded by subpoena. Again, all of these items are essential to the application and are jurisdictional.
  
  The petition may be filed 15 days after the employer receives a copy. The employee must certify that the employer received the petition with the required information 15 days before filing.
  
  In theory, emergency petitions have priority over all other matters, although this will vary from arbitrator to arbitrator. Rules of 720.80b3 and 720.80b4 prescribe various time limitations for hearings before an arbitrator and proceedings before the Commission. At the beginning of each hearing, arbitrator must state the provisions Rule 720.80b3ci regarding arbitration transcripts. The commission is statutorily mandated to file its decision within 90 days after the petition for review is filed but in no event later than 180 days from the date the 19b1 petition was filed.
  
  The 19(b) petition is more widely used as it is a more streamlined procedure and may actually get to hearing before the arbitrator more quickly than the 19(b1) petition. On the other hand, an employer can request a review by the Industrial Commission of the Arbitrator's award of the 19(b) and there is no particular time restraint on the decision from the commission. It may take up to 12 months for a decision from the Industrial Commission on a 19(b) petition. The 19(b-1) petition requires a decision must be made rendered by the Commission within the 180 days of the filing of the petition.
  
  The employee may also want to consider filing along with the 19(b) or 19(b-1) petition, a 19(k) petition which is asking for an assessment of penalties and attorney's fees. Section 19(k) of the act authorizes the Commission to assess a penalty equal to 50% of the compensation due and payable in cases where there has been an unreasonable or vexatious delay of payment of an award or failure to pay compensation in accordance with provisions of Section 8(b) of the Act which shall be considered unreasonable delay. A Section 19(L) also may be considered. 19(L) provides that in the case where an employer's insurance company withholds temporary total disability benefits unreasonably, that the employee may claim an additional compensation in the sum of $10.00 per day for each day that a weekly compensation payment has been so withheld or refused. This petition should generally be filed with the petition for immediate hearing under 19(b) or 19(b-1).
THE PREHEARING CONFERENCE

Pretrial conferences are required to be held by Arbitrators in each case that has been stipulated for hearing. The exact method for setting a case for hearing differs from docket to docket, but the general procedure is to file a form called a Request for Hearing for the docket on which the case is scheduled. A copy of that Request for Hearing should be sent to counsel for the opposing side. Generally, unless cases are on the "hit list", hearings will be held by agreement of the parties on their scheduled docket.

In addition to the filing of the Request for Hearing, it is recommended that counsel should write to the opposing counsel with a reminder of the trial date and counsel's intent to be ready to proceed to trial. Most practitioners have more than one case scheduled for each docket and this is important to give notice to both sides. If an independent medical examination has not been scheduled, it should be pointed out at this time so that the hearing is not delayed. This letter should include a list of the hospital records that will be offered at trial and any material that will be offered as an exhibit at trial should be identified for any objections so that if depositions are necessary they can be promptly scheduled. This letter should also request copies of any material that the opposing counsel plans to offer as exhibits at the time of trial rather than deliver the material on the day of the trial.

The Request for Hearing sheet will need to be filled out by both parties and signed. Your letter should ask the opposing counsel to fill in the appropriate places on the stipulation sheet and return prior to trial. It is the Request for Hearing from that will establish the parameters of the trial. Other things that could be considered in the letter is your theory of the case, including causation, nature and extent of the injury and a settlement demand.

While it appears to be an obvious situation, many practitioners do not think about notifying their clients for trial. When the case is ready to be scheduled, notify the client of the date, time and place of the trial with instructions to make arrangements to appear at the trial. You should give directions to the call site. Ask the client to call your office immediately to schedule an appointment for the purpose of reviewing trial testimony. Also, a list of the medical bills should be sent to the client along with your records of temporary disability. The client should make sure that you have all of the medical records and that you have records of all the time off.

You should meet with your client two to three weeks prior to trial. It will refresh both parties' recollection of the facts of the case and will put the employee at ease in what could be stressful situation of trial.

After the opposing counsel has had time to consider the questions and problems identified in this letter, it is appropriate to have a personal conference with the Respondent's attorney. In this conference, an effort should be made to reach agreements on all issues, but in particular, wages, rates, temporary total disability, the amount of compensation paid and the status of unpaid medical bills. Both parties should look at each other's proposed exhibits and resolve all possible issues prior to the pretrial conference.

The injured worker rarely has an active role in the pretrial conference. Settlement discussions and pretrial conferences between attorneys generally occur outside the presence of the injured worker. In the event that an agreement is not reached at this conference, then the parties will proceed with a pretrial conference before the Arbitrator. Pretrial conferences vary widely from Arbitrator to Arbitrator and one should be familiar with the procedures of each Arbitrator. At the larger Calls, usually the first day of the Call would be the pretrial day. On the smaller Calls, the pretrial conference may take place immediately before the trial. The purpose of the pretrial conference is to eliminate or reduce some issues and to encourage stipulations. It is also an attempt to have the parties reach a settlement agreement after understanding the position that the Arbitrator may give after a certain set of facts.

The pretrial conference is generally an informal conference. It takes place with both attorneys, generally outside the presence of the injured worker. Both parties will present their positions to the Arbitrator and discuss any strengths and weaknesses of the case as well as the any problems that have arisen. The Arbitrator in this stage acts more in the form of a mediator in trying to have the parties reach some agreement on all or some of the issues prior to the hearing. It may be beneficial to have copies of other decisions of this Arbitrator or other Arbitrator's in the area when discussing values of the case at the pretrial conference.

If a settlement does occur, contracts supplied by the Industrial Commission should be used to settle all claims. Arbitrators are then required to approve each contract to make sure it is an appropriate settlement figure, as well as to make sure all issues are now resolved. The contract should be fully completed, including the answer to all questions on both sides of the contract. An Addendum may be attached to the contract if additional room is necessary for the description of the terms of the settlement. The Contract should also include any outstanding medical bills and whose responsibility it will be to pay for these bills. Any question left blank will subject the contract to rejection and will delay the settlement and the pay out of the claim.

Unlike the Application for Adjustment of Claims, settlement contracts may resolve more than one claim. If one or more claim is included, it suggested that the parties specifically explain what the terms to each settlement are in the contract itself as fully and completely as possible. The settlement should include the average weekly wage, the percentage of disability, the number of weeks paid and total settlement value.

Contracts are mailed to the Arbitrator for the docket for which the Application of Adjustment Claim exists. Arbitrators should approve or disapprove contracts in a timely manner and return to the parties. Contracts should also include the return to work date or an explanation if there is not return to work. Additionally, language can also be included regarding Social Security benefits, any hold harmless agreements or waivers of any third party liens.

The settlement contracts generally waive an employees rights to Section (8) or 19(h) benefits (open medical and future TTD benefits), unless additional language is added to the contract continuing these rights. The contract is a final decision once approved by the Commissioner. A copy of all relevant medical records should be attached to the contract so the Arbitrator or Commissioner can better understand the nature of the injuries sustained. In Chicago/Cook County, four copies of the Contract and one copy of the medical records and a completed request card should be sent to the Commission. Contracts can be picked up at the Illinois Industrial Commission. Downstate, four copies of the Contract along with medical report and an attorney representation agreement should be mailed to the Arbitrator along with a self addressed stamped envelope for return. (See attachment F)

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Litigating a Workers' Compensation Claim: The First Step a Claimant's Perspective

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