Closing Files

April 2013

By Francis M. Brady

"This file has been open for six years!"

"I had this case as an adjuster and now I have it back again as a supervisor!"

"Isn't there some way to get this file heard!"

If you are doing business in Illinois, or representing those who are, you likely have heard similar sentiments, or even expressed them yourself. Illinois employers and those of us who assist them, come into contact frequently with the Illinois Workers' Compensation Commission (IWCC). The IWCC system does not universally lend itself to the expeditious disposition of litigation.

This article considers one way to overcome institutional inertia.

The age of the case at the IWCC often not does match the age of the file in your claim drawer. A lengthy period of time can elapse between the accident and the date the worker files his case. As a general rule, an injured worker has three years from his accident to file with the IWCC. Even then, petitioner is under no compulsion to press his case for another three years.

If the IWCC is not going to force action for years, can the employer press the issue? Lawyers at Brady, Connolly & Masuda, P.C. look for ways to answer yes. One method of sparking action is the effective use of Trial Motions. Practice Rules require, generally, that petitioner has not sought or received medical care and temporary total disability for six months. And there must be evidence that petitioner's physical condition has reached a state of permanency. Once these milestones are reached, the employer can look for a trial.

The Trial Motion, however, does not guarantee that the Arbitrator will actually set a trial date. And even if she does, nothing guarantees the case will actually be tried. Still, by filing the Motion and appearing ready at a trial date, the defense can make the Arbitrator aware that at least one side of the litigation believes it is ripe for closure and is prepared to conclude by trial or settlement.

Prompting the Arbitrator's awareness on these points may take more than one Motion or hearing date. Depending on the newness of the matter and the Arbitrator's docket, it may actually take 3, 4 or 5 times. But sooner or later, the Arbitrator will begin to remember the case and agree it has taken on a sort of déjà vu aspect. Thus, final action need be taken.

The process obviously involves repetition, but there are no good shortcuts. Getting a trial date connotes readiness to proceed so proper workup is crucial.

If you have any questions about the effective use of Trial Motions, we would be glad to discuss our practice.