When to File a Lawsuit FAQ
How Do You Know when You Should Actually File a Lawsuit Against an Employer?
There are a lot of factors that go into a determination as to whether or not a case actually needs to be fought. All cases, whether they’re going to be settled or not, actually have to be filed at some point. However, the determination as to whether or not to file it early would depend on whether or not the employer’s paying temporary total disability payments, whether they’re accepting liability, and also whether or not the employee is getting a compensation amount that is considered fair. Once negotiations have broken down, and it’s obvious that the parties are not going to be able to settle, then the employee’s going to need to file their claim with the Workers’ Compensation Commission.
At that point, you’re basically filing a lawsuit. Once you’ve filed the application for adjustment of claim that is when the actual lawsuit would begin. Sometimes the lawsuit is not filed right away because it appears that it is going to be settled but all claims have to be approved by the Commission. Therefore, eventually that claim is going to have to be filed; it’s just a matter of whether or not another attorney that represents the employer is going to be involved.
Do People Typically Get a Higher Financial Award if They Settle Outside of Court or Once They’ve Actually Filed the Lawsuit and Gone Through the Trial Process?
In Illinois Workers Compensation law, the greater majority of time, it’s going to be necessary to litigate in order to get a fair settlement. This is based on experience. Attorney Terry Dodds has had more success in negotiating and dealing with an attorney than with an adjuster. A lot of times, the adjusters aren’t as familiar with monetary amounts that a claim is worth. They obviously also want to try to settle their case for the least amount possible because that’s what they get paid to do. However, often times, once litigations begins and the insurer has to hire an attorney, the attorney for the employer can speak with the adjuster and make the adjuster more reasonable.
Does the Threat of Lawsuit or Going to Court Ever Have Any Effect on The Other Side?
Threats don’t mean anything to adjusters or insurers. Until they actually start paying money for legal representation, until there is actually litigation advancing, including discovery, there is really not an incentive or additional thought process that goes into whether or not to increase the settlement amount being offered. Threats usually don’t do anything – they don’t take them seriously.