FAQ: Frequently Asked Personal Injury Law Questions
Q) I was injured in an accident, do I need a personal injury lawyer?
A) There is no absolute answer to this question, but generally speaking ask yourself whether you feel more confident hiring a personal injury attorney to represent you, and how confident you are that the insurance company for the person or entity causing your accident will treat you fairly. If you have doubts as to whether you need an attorney, simply call our Chicago law firm. There is no charge for a consultation, and the discussion will likely help you make your decision.
Q) I was injured in an accident. Should I wait to receive medical treatment until I speak with a personal injury lawyer?
A) No, you should seek medical treatment immediately after an accident to address your injuries, to improve your life and to get back to what you were doing before the accident.
A) Basically, with regard to negligence and caps. In a personal injury case you need to prove negligence; in a Workers’ Compensation case you do not. Once negligence is proven however there are no caps in a personal injury case in Illinois. Compensation in a Workers’ Compensation case is tied to a person’s average weekly wage, and by operation of law, there are caps on Temporary Total Disability and Permanent Disability payments.
Q) What damages are available in a Workers’ Compensation case?
A) Workers’ Compensation awards may consist of two-thirds of your average weekly wage (up to certain maximal limits), permanent disability and payment of your past and future medical bills.
Q) What damages are available in personal injury cases?
A) Assuming the evidence merits each of these categories, a person injured in a personal injury case, such as a car accident, would be entitled to past and future lost wages, past and future medical bills, pain and suffering and disability/loss of a normal life.
Q) Why does my personal injury case take so long to resolve?
A) There are many potential reasons, such as:
- A case requires the cooperation of all parties;
- The Court docket may be crowded. In general, Cook County, Illinois cases take longer to get to trial than cases in the collar counties;
- Witnesses may not be immediately available; and
- Whether your attorney seizes the initiative. Experienced personal injury attorneys know the pre-trial process and don’t wait to be ordered by a Court to take specific actions. Rather, each step in the pre-trial process is anticipated and satisfied as quickly as possible.
Q) Why won’t the insurance company settle my case?
A) There are many reasons an insurance company may not settle your personal injury case. For example:
- The insurance company may believe that it is not responsible for your injuries; or
- They may believe that your medical treatment was excessive or unrelated to your accident. They will demand strict proof both as to how your accident happened and your claimed damages, and often hire an expert to refute your claim. While it is understandable that an injured person focuses solely on his/her injuries and the effects of these injuries on your life, the insurance company should not be expected to be sympathetic to your case. The litigation process is adversarial in nature, not unlike contestants in a sporting event. This is an additional reason to consider hiring an attorney.
Q) What car accident rights exist for an accident you didn’t cause?
A) If injured, you have the right to seek compensation for your injuries. If you have liability insurance, you have the right to be defended under your policy at no cost to you.
A) This depends on the facts of your case. Many times you would sue both the doctor and hospital. This decision almost always entails working closely with a medical expert we hire to help us better understand complex medical issues. Part of our medical malpractice evaluation includes exploring who may be liable under injury law.
Q) Would you lose your Workers’ Comp benefits if you get laid off from work?
A) No. A person’s entitlement to Workers’ Compensation benefits exists independent of work status. If you are unable to work because of a work related injury, you are entitled to Workman's Comp benefits whether you are laid off or even fired.
Q) Would an MRI show cauda equina syndrome?
A) Not technically, as cauda equina syndrome is a diagnosis made on the basis of clinical information — bowel, bladder problems, saddle anesthesia, leg weakness, etc. An MRI would confirm a central herniated disk, an injury to the cauda equina nerve roots which lay in the spinal canal, and which is the most common cause of cauda equina syndrome.
Q) Can an employer force an injured employee to return to work?
A) No, the employer cannot “force” you to return to work but the employer can cut off your Workman's Comp benefits if you do not return to work. This most commonly arises when the employer sends you for a so called “Independent Medical Evaluation” (IME) with a company doctor who believes you could return to work. This opinion may conflict with that of your treating doctor. Your employer and its Workers’ Compensation insurance company have a right to depend on medical evidence which favors its position. You have two options at this point:
- Either go to trial and have the Court determine whether or not there is a legal-medical basis for you to be off work; or
- Try returning to work and see what your capacities are. For practical reasons, unless the injured worker has sufficient financial resources to tide them over until trial, it is quicker and more efficient for the injured worker to try returning to work. If you can do the work, fine, you will be entitled to your regular salary. If you cannot do the work after legitimately trying to do it then you should be entitled to restoration of your Workers’ Compensation benefits. To state this otherwise, an IME’s opinion that you could return to work is a prediction. Like all other predictions, this will be proven right or wrong through actual experience, i.e. by returning to work. If you can work, the prediction is accurate. If you can’t, the prediction is wrong and there is no reason not to reinstate Workers’ Compensation benefits.
Q) The Workers’ Compensation company’s second opinion doctor releases you to return to work, but the company’s first doctor does not. What happens?
A) Generally, you would be entitled to Workers Comp benefits. However, if there is a change in your medical condition between the time of the first doctor’s evaluation and the second doctor’s, that difference may provide reason for withholding benefits. Also, if the second company doctor is a specialist while the first is an internist, the Court may assign additional credibility to the specialist’s opinion.
A) Not necessarily. A common defense theme is that a person had a prior arthritic condition, which would have required treatment regardless of an accident. However, if your situation is that you never saw a doctor for the arthritic condition before the car accident, were on no medications for it, missed no time from work because of it and were able to engage in your usual social and recreational activities, the jury would get the idea that it is the aggravation of the arthritis caused by the accident that is the reason for your problems, and not just the arthritic condition alone. Under the law, an aggravation of a pre-existing condition is an appropriate basis for awarding compensation.
Q) Why would one lawyer turn down a personal injury case, yet another lawyer accept it?
A) Different attorneys are looking for different types of personal injury cases. For example, not every attorney wants to handle a medical malpractice case. Secondly, an attorney may not wish to accept a case he doesn’t feel qualified to handle. Thirdly, some attorneys will only accept cases of certain anticipated value.
Q) Who pays settlements under the Defense Base Act?
A) The insurance company for the contractor you are employed by.
A) Ultimately, if the Defendant is found liable for your auto accident, the Defendant would have to pay the cost of your medical treatment in addition to other categories of damage. Such payments, however, occur after a case is ultimately resolved. Your own car insurance company may also pay your bills under a provision of your insurance policy called “medical payments”. However, at the end of the case if you are successful against the Defendant, you would generally have to reimburse your own insurance company for the medical bills it paid on your behalf. An overriding principle of law is that a person cannot collect from two separate sources for the same injuries.
Q) Is compensation greater in a Workers’ Compensation case, or in a personal injury case?
A) Assuming that negligence can be proven, the compensation in a personal injury case will be greater than in a Workers’ Compensation case. If negligence cannot be proven, or is doubtful, then the benefits and settlement in a Workers’ Compensation case will likely be greater.
Q) When should you not make a lost wage in a personal injury case?
A) When you have not filed a tax return for the year you are claiming lost wages, or when your lost wage claim can easily be disputed, but your injuries and medical treatment cannot be. Sometimes, it is wise to sacrifice the lesser for the greater.
Q) Do you get compensated when returning to work with limited abilities?
A) Yes. You should receive compensation for Permanent Partial Disability, generally the largest category of payment to you in a Workers’ Compensation case.
Q) When does a Workers’ Compensation lawyer ask for an MSA in Illinois?
A) An MSA, or Medical Savings Account, comes into play when an injured worker is receiving/entitled to receive Medicare benefits, and is expected to have future medical costs. The federal government does not want to get saddled with costs that arise from an Illinois Workers’ Compensation case. Resolving a Workers’ Compensation case without considering whether a MSA is necessary exposes you, your attorney and the Workers’ Compensation insurance carrier to certain penalties/sanctions.
Q) When must you see an independent doctor for a work related injury?
A) Whenever the Workers’ Compensation carrier asks for (and pays for) it. This is an absolute right the law provides to employers.
Q) When do you know a surgery has gone bad and that you should you sue your doctor or hospital?
A) A surgery that has gone bad does not mean that the surgery was negligently performed. Neither doctors nor hospitals can insure the outcome of treatment. Whether medical treatment that results in an unexpected outcome means that there was negligence is something that initially has to be decided by a doctor. Ultimately medical malpractice has to be decided by the jury.
Q) When can Workers’ Compensation benefits be cut off?
A) When you are capable of returning to work, when you do not have a current off work statement from your treating doctor, or when you are not compliant with your medical treatment.
A) This is determined by the nature and extent of your personal injuries, your need for future medical treatment, your work capacity and your doctor’s opinion as to whether your injuries are work related.