With the Governor of Illinois pressing for significant worker’s compensation “reform,” I have been giving a great deal of thought to the many and varied differences between a worker’s compensation claim and a personal injury claim in Illinois.  Many people, including legislators in Illinois, really do not understand the significant differences between the Illinois Worker’s Compensation Act and a Personal Injury case.  The differences are astonishing in terms of proving a case and the types of damages that are recoverable.  If one understands just how limited and restricted damages are in a worker’s compensation claim, then maybe, just maybe, the Governor and General Assembly will not be so quick to enact additional reforms that further reduce the injured worker’s rights under the Illinois Worker’s Compensation Act.

Let’s look at the Illinois Worker’s Compensation Act.  This Act was enacted as a result of many significant compromises between labor and business.  The main compromise was that business (the employers) agreed that liability would be easier to prove in exchange for labor (employees) agreeing to limit the amount and types of monetary compensation that could be recovered.  Put another way, the employers agreed to lessen the burden on an employee to prove he was entitled to receive compensation.  For this promise, the employees agreed to limit the amount of money they could obtain as compensation.  Business now is looking to change this bargain by making it harder for an injured employee to prove that he is entitled to an award and if he is entitled to an award to further limit the amount of it.

In essence, under the Illinois Worker’s Compensation Act, the employee has to prove that his injury was the result of an on-the-job accident.  The employee does not have to prove “fault” on the part of the employer.  He does not have to prove that the employer caused his injury.  Rather, he has to establish that the injury occurred while he was on-the-job doing what he was supposed to be doing.  With certain exceptions, if an employee can prove this then he is entitled to receive an award under the Illinois Worker’s Compensation Act.  If he cannot prove this, then he is not entitled to make a recovery under the Act.

Legalese.  Sounds like a bad disease, doesn’t it?  In a way, it is.  It is a disease, to paraphrase the warden in Cool Hand Luke, that all too often results in a “failure to communicate,” the ultimate disease that can doom an attorney-client relationship.  A lawyer’s ability to communicate clearly and concisely is the linchpin to a successful attorney-client relationship, success in the courtroom, and success with opposing counsel.  A “failure to communicate” is the death knell to success.  In order to best represent you, your lawyer has to be able to communicate.

Too often lawyers will speak “legalese” without thinking twice.  There are many reasons why a lawyer may talk like a lawyer instead of like a real person, none of which are particularly good.  Let’s look at some of  them.

Attorneys will sometimes use it as a shortcut to express a more complex legal concept.  While that may be fine when your lawyer talks that way to opposing counsel, the opposing insurance claims adjuster, or the Court, it is not acceptable for him to speak that way to you, the client.  Most people without legal training will not understand the “legalese.”  I know how frustrated I get when my doctor speaks “medicalese” to me.  What is wrong with me?  What is he telling me?  Am I dying?  Just what the heck is going on?  I want to know what my medical condition is, not the label for it.  You, as a client, have a right to understand what is going on with your legal case, not just the label.

Unfortunately, many of us will at some point be injured in a car accident.  Afterwards, especially if you think that the other drive was at fault, you might wonder “do I have a case?”  Let’s look at the legal requirements for “having a case” and then let’s talk about them the way real people talk.

In legal jargon, in order to make a legal recovery in an automobile accident, the injured person has to establish the following:  1.  The other driver was negligent.  2.  That other driver’s negligence proximately cause harm to you.  3.  You suffered actual harm.

What does all this actually mean?  Negligence simply means that someone did something he or she should not have done or did not do something that he or she should have done.  We have all taken driver’s education in high school and have studied the Rules of the Road.  The Rules of the Road is one of the most important resources for determining if a driver was “negligent.”  For instance, did the other driver run a stop sign?  Did the other driver turn left in front of you as you were approaching the intersection?  Was he speeding?  Talking on his cell phone?  If you can demonstrate that the other driver violated the Rules of the Road, you are on your way to showing that he was negligent.