Wednesday, August 27, 2014

Why can it take so long to get my day in court?

When you get hurt and the insurance company doesn't do what they are supposed to do and you don't have any money coming in and you aren't getting any medical care, all you can hope for is to get your day in court as soon as possible.  So, what gets in the way of that?

First of all, your attorney should be your advocate.  It is your lawyer's job to get your case ready for trial as fast as possible and to stomp their feet when the other side tries to push the trial date back.  Having said that, there are things out of a lawyer's control that can impact when you get your court date.

State law says that the hearing shall be held "as soon as practicable," but no hearing can be scheduled less than 30 days from the date of the hearing notice.  This means that after you send in your request for a hearing and the Board issues a hearing notice scheduling a court date, it will be at least 30 days from that date before your case can be heard by a judge.  In reality, most dockets are set up so that the first hearing will not be scheduled for the "first setting" until about 60 days from the hearing notice.  There are some good reasons for this, mostly due to the practical time needed for each side to get their case ready.

During the time while your hearing is coming up, the insurance company will hire a lawyer.  He or she will try to request medical records from every place that they can find that you have ever treated for anything.  If they think you treated for a blister 5 years ago at a medical clinic, they will ask for the records.  (If you don't believe me, tell them you had a blister somewhere 5 years ago and see if they don't send a request for records to that place.)  They will also send you a set of written questions to answer about yourself and your accident.  They will ask for any documents you may have related to your injury.  They will want to know everything about you and your injury.  If your lawyer is worth the paper their diploma is written on, they will send similar requests to the employer/insurer to try and figure out why the employer/insurer thinks your case is no good.  The insurance company will also likely take your deposition (which means they put you under oath and ask you a bunch of questions about your life and about your claim).  All of this is normal and takes some time.

As the hearing date approaches, it is almost guaranteed that one side or the other will ask for a continuance -- meaning, to reset the case to a later date.  The most common reasons are that one side is still waiting on a medical provider to send records or they may just more generally say they need more time to "complete discovery."  In my 20+ years of practicing workers' compensation, I think I've actually only held a hearing on the first setting a couple of times.  Although there is no formal law or rule that requires a continuance from the first court date, it is an extremely common practice that if either side wants a reset from the first setting, they will get one.

After the first continuance, things change.  At that point, a judge is legally required to rule on whether there is good cause to continue your case, if you object to the continuance.  Truthfully, it is still not uncommon for insurers to ask for, and get, continuances on the second or even third setting.  But, it becomes much more difficult for them.  They must show a good reason to the judge.  Sometimes they have a good reason, sometimes they don't.

Recently, I had a case that was just on it's second setting, which is about as fast as you can reasonably expect your case to be heard.  The insurance company requested another continuance because they were "waiting on medical records."  We objected.  I pointed out to the judge that the insurance company did not even request the records until about 7 weeks after we identified the provider to the insurer.  The judge agreed with us in this particular case.  The judge said the insurer waited too long to ask for the records and ordered the insurer to be ready for trial in three days.  During the three day period before the trial was scheduled to start, we settled the case for a fair amount.  By pushing the issue and holding the insurer's feet to the fire, our client got a fair result.

So, the lessons here are:

  1. File your hearing request ASAP so your case gets on a calendar ASAP;
  2. Expect a continuance from the first hearing date (whether or not there is a strong reason); and
  3. Object to any further continuances if you are ready for trial and if there is evidence to show the insurer dragged their feet for no good reason.
If you are ready, and they are not, then you are at an advantage.

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