Factors that Add Value to Traumatic Brain Injury (TBI) Workers’ Compensation Claims

Workplace head injuries are serious and most of these are caused by slips and falls, falling objects, driving accidents, and broken/malfunctioning equipment. If a brain concussion is caused by the accident, it can lead to loss of consciousness or sometimes there may not be any obvious symptoms. Usually, blurred vision, nausea, confusion, loss of balance and abnormal behavior are the common effects of a concussion. A good quality evaluation of traumatic brain injury or TBI involves comprehensive medical records review. This review process is enhanced with the analysis of five important records: Emergency medical service/emergency medical treatment (EMS/EMT) report; Emergency department record; hospital record in the case of hospitalized persons; trauma neuro-imaging records, and rehabilitation record if rehabilitation was needed. Medical review services for attorneys would involve the review of the above mentioned records as well as all medical documentation that would help determine the cognitive and behavioral capacity of the person before injury, the injury records, post-injury rehabilitation and other medical records. The facts that emerge from the review of these medical records will help establish the functional changes in the person following TBI, which is something that the workers’ compensation system, the person’s employer, and the social security administration would need, to determine disability and compensation.

Workers at the Highest Risk for TBI

• Construction workers
• Race car drivers
• Loading dock workers
• Firefighters
• Police officers
• Professional athletes
• Delivery workforce

A worker who sustains a head injury can claim workers’ compensation benefits. These benefits would include compensation for medical/therapy bills, around two-thirds of lost wages, and out-of-pocket expenses such as medications, bandages, hospital parking fees, etc.

Studies show that around 2 – 5 million brain injuries occur each year. Many people don’t even realize they have sustained an injury and never seek medical treatment. The signs of brain injury are often subtle, and may escape the notice of physicians. Traumatic brain injuries cause around 52, 000 deaths every year. Treatment and recovery is highly personalized because each individual responds differently to the injury and the treatment.

Workers’ Compensation Claims Involving TBI on the Rise

There has been a steady increase in the number of claims involving TBI, mainly in proportion to the increase in awareness of TBI and the possibility of recovering considerable damage awards in these cases. A TBI case is challenging to insurers as well as plaintiff and defense attorneys. Evaluating these types of cases is difficult because of the challenge involved in determining the severity of the injury, and due to the fact that there is no single pattern in which TBI affects individuals.

Factors That Decide the Value of a TBI Case

A number of factors come into play when deciding the case value of a traumatic brain injury.

• Injury documentation: In a ‘mild" TBI case, the plaintiff’s attorney will have to convince the insurer or jury that the plaintiff did suffer TBI because the findings in MRIs, CT scans, EEGs and other objective diagnostic tests may be normal. Cases wherein there is an abnormal finding would have greater value than cases without these objective findings.
• Whether the plaintiff looks injured: The plaintiff’s appearance is an important factor that may influence the jury verdict. It becomes difficult to prove the case if the plaintiff looks, sounds and acts normal. On the other hand a plaintiff who displays the symptoms associated with a brain-injured person such as abnormal motor movements, slurred speech, unusual behavior etc stands a better chance of receiving a favorable verdict.
• Proven loss of consciousness: It is easier for an attorney to win a case in which there is a clearly documented period of unconsciousness.
• Time at which diagnosis was made: If the diagnosis of TBI is made in the emergency room or soon after the accident, it is easier to prove. On the other hand, if the diagnosis is not made for many weeks or months after the injury, it can be damaging to the plaintiff.
• Different diagnoses: If the treating doctors differ in their opinion, it may be problematic for the plaintiff.
• Plaintiff’s social/personal/work history: A plaintiff having a poor work history, history of previous accidents, or criminal history may not receive an adequate verdict in a "mild" TBI case. Personal issues such as death in the family, separation, divorce, loss of custody of a child, financial constraints and so on can also have a negative impact.
• Previous psychological/psychiatric treatment: The plaintiff’s attorney will have a tough time if the plaintiff has undergone earlier psychiatric or psychological treatment because any cognitive functioning disorder may be linked to depression and other mental health issues. Neuropsychological testing that a plaintiff will have to undergo will be affected also by conditions such as attention deficit disorder, borderline intelligence and other learning disabilities.
• Whether lay witnesses are available: It is very likely that jurors will identify more with lay witnesses than experts. These lay witnesses include co-workers, family members and friends who can effectively establish how TBI has affected the plaintiff and how his/her level of functioning has changed post injury. Along with medical experts, lay witnesses can help win a TBI case.
• Expertise of medical experts and treating doctors: Depending on the case, the court will require testimony from a neuropsychologist, neuropsychiatrist, neuroradiologist, vocational rehabilitation expert, life care planner and an economist among others. Medical experts/treating doctors who have known the plaintiff for quite some time will add value to the claim.
• Medical expenses involved: A plaintiff who has been treated at a comprehensive brain injury rehabilitation program, or one who has continuing medical needs such as medication expenses are more likely to receive a favorable judgment compared to one who has received little or no medical treatment for the injury. The services of a qualified life car planner would be required to correctly evaluate the future medical needs in any TBI case.
• Miscellaneous factors: When a TBI case is evaluated, some other elements also come into consideration. These include – whether alcohol use, over speed or other violations of the law are involved; whether the defendant is an individual or an organization; insurance coverage available; the reputation of the plaintiff’s attorney and whether the plaintiff can bear the uncertainty and stress of a trial.

Typically, damages claimed are almost always $100, 000 and sometimes these run to millions. However, there are several expenses involved which have to be subtracted from the amount awarded. These expenses include the fees for independent medical experts called in to evaluate the legitimacy of the claim, court expenses, witness interview related expenses and fees for damage experts. An attorney would study the case in detail and make sure that the injured client is seen by doctors who can understand and treat the injury more effectively. If the medical tests conducted show that the plaintiff has significant problems, the attorney would hire other experts who can prove to the court how these problems affect the plaintiff economically. This is where experienced damage experts can help by showing the jury how much money the plaintiff would lose over the course of his/her life because of the injury. This is very important when it comes to determining the amount that will be awarded.

Managed Outsource Solutions (Mos) has providing value-added medical record review services for the medico-legal industries.