How to Negotiate a Fair Workers Compensation Settlement if Your Work Injury or Auto Accident Results in Post Concussion Syndrome
Post Concussion Syndrome Can Develop After Mild Traumatic Brain Injury, Affecting Your Ability to Work and Perform Mentally. Learn What to Consider When Calculating a Post Concussion Syndrome Settlement Amount that Gives You Peace of Mind About the Future.
A concussion is a mild traumatic brain injury (TBI) with no other brain injuries detected, such as an intracranial hematoma or a contusion.
Concussions are a common injury – at work and home. They result from a blow to the head or sudden shaking of the head and neck. Leading causes of this trauma include car accidents, slip and falls, falls from heights, fights (assault and battery), workplace violence, and sports and athletic activities.
Suffering a concussion at work or in a motor vehicle collision puts you at risk for developing post-concussion syndrome, a complicated medical condition that causes many symptoms and problems. Post-concussion syndrome can last for weeks, months, or even years – preventing you from working and lowering your quality of life.
This article explains how to increase the value of your post-concussion syndrome settlement in workers compensation and car accident cases. I’ve learned these things representing hundreds of auto accident victims and injured workers who suffered a mild traumatic brain injury and developed post-concussion syndrome. And I hope they help you negotiate a top-dollar post-concussion syndrome settlement.
If you have questions about the different types of head trauma or are looking for a top-rated brain injury lawyer who focuses on helping accident victims negotiate personal injury and workers comp settlements, call me: 804-251-1620 or 757-810-5614. Let me help you get the post-concussion syndrome settlement you deserve.
What is Post-Concussion Syndrome?
Some crash victims and injured workers recover within a few weeks of suffering a concussion. Most concussion symptoms resolve completely within two to three weeks of the accident, with the rest going away within one to two months with proper treatment.
But some of you – including many of you reading this article – may continue to have behavioral, cognitive, and emotional symptoms long after your head injury. If so, you may have post-concussion syndrome.
Post-concussion syndrome is the medical condition in which you continue to experience symptoms after the normal recovery time for a concussion.
What are the Symptoms of Post-Concussion Syndrome?
The medical providers who treat brain injury expect your concussion symptoms to last several days, up to a few weeks. However, you should seek medical attention if any of the symptoms listed below last longer than a few weeks.
Your doctor will perform brain imaging tests such as MRIs and CT scans to rule out apparent structural damage. If none exists, your doctor may diagnose post-concussion syndrome if you have three or more of the symptom categories listed below more than one month after the head injury. There is no standard, objective test for post-concussive syndrome, though neuropsychological testing can help determine your disability and impairment level.
- Headache, dizziness, lightheaded, vertigo, fatigue (decreased energy), or noise intolerance (sensitivity to loud noise). Post-traumatic headache pain is a major problem for many people suffering from post-concussion syndrome.
- Irritability, depression, anxiety, emotional lability (mood swings), change in personality and how you get along with others
- Difficulty with concentration or memory, intellectual problems, and cognitive deficits affect your ability to process, store, retrieve, and use information. You may have trouble finding the right word.
- Insomnia and other sleep problems
- Reduced alcohol tolerance
- Obsession with the symptoms you are suffering and fear that you may never get better
There is no standard test for post-concussive syndrome, though neuropsychological testing.
How Common is Post-Concussion Syndrome after a Work-Related Accident or Car Crash?
Unfortunately, post-concussion syndrome is a common result of cerebral concussion.
Research data shows that post-concussion syndrome may occur in as many as 50% to 80% of patients who suffer mild to moderate traumatic brain injury. You can visit the Brain Injury Association of America’s website for more information on how common concussions are.
There is no way to predict which auto accident victims and injured workers will develop post-concussion syndrome. But some factors put you at greater risk:
- Age. Older persons are at greater risk of suffering post-concussive syndrome.
- Sex. Females suffer at a higher rate than males.
- Medical history. Persons with a history of prior concussion, migraines, or mood, anxiety, learning, or seizure disorder are at greater risk. A single head injury increases the risk of a second head injury.
- The severity of the injury. The more severe a person’s concussion and the greater the visual symptoms following the initial accident, the greater the risk of developing post-concussion syndrome.
- Ongoing Litigation. Persons going through an auto accident or workers comp litigation may experience tremendous stress that increases post-concussion syndrome symptoms.
Understanding the Effects of Post-Concussion Syndrome and How Disabling It Can Be
Though you may look normal to friends, family members, co-workers, and strangers, post-concussion syndrome can entirely disrupt your life.
In your personal life, you may notice difficulty maintaining relationships with others and communicating effectively. You may also have to avoid certain activities and places that increase your stress and symptoms. This results in a complete restructuring of your life and the lives of family members.
In your professional life, you may notice that you are making more mistakes at work or having trouble accepting criticism from your manager or socializing with co-workers. These problems could mean you have to change careers or stop working.
And if your child develops post-concussion syndrome after a head injury, they may need to take time off from school and extra-curricular activities. This can disrupt their intellectual and social development.
Treatment of Post-Concussion Syndrome
There is no single treatment method for post-concussive syndrome. Medical providers use several ways to treat the physical, psychological, and cognitive aspects of post-concussive syndrome. These include:
- Rest. It helps if you give your brain time to rest and heal naturally. Your doctor may recommend that you take off time from your routine, regardless of whether that involves work, school, or homemaking. Increased stress delays the healing process.
- Pharmacological Treatment. Your doctors may prescribe various medications to treat your headaches, dizziness, depression, and anxiety. Common drugs used in the treatment of post-concussion syndrome include Hydrocodone, Naproxen, Zoloft (Sertraline), Gabapentin (Neurontin), Depakote, Tegretol, and Amitriptyline. Workers compensation covers prescription medicines for post-concussive syndrome.
- Psychotherapy/Counseling: Meeting with a psychologist or counselor for one-on-one therapy sessions, or joining a support group with other traumatic brain injury survivors, can help you recover and heal. You’ll know that you are not alone in your fight against post-concussion syndrome.
- Rehabilitation: Depending on the type and severity of your brain injury symptoms, you may benefit from working with physical therapists, speech therapists, and other specialists who can help you function and complete activities of daily living more efficiently.
There is no cure for post-concussion syndrome or a specific course of treatment. But over time, you may be able to manage and reduce your symptoms.
How Long Does Post-Concussion Syndrome Last?
There is no rule for how long post-concussion syndrome symptoms will last after your auto accident or work-related injury.
Several studies, however, have tried to figure out the answer. Their findings can help determine the best route to take with your case.
About half of you with post-concussion syndrome symptoms will experience resolution of those symptoms by one month after your traumatic brain injury.
Another 25% of you will experience a resolution of post-concussion syndrome symptoms three to twelve months post-TBI.
And the remaining 25% of you may have persistent symptoms of post-concussion syndrome that last more than a year or even the rest of your life.
Are Post-Concussion Syndrome and Chronic Traumatic Encephalopathy (CTE) Similar?
No, post-concussion syndrome and CTE are not the same.
The media has run many stories on CTE the past few years.
CTE is a progressive degenerative disease of the brain found in people who have a history of repetitive head and brain trauma, such as professional football players.
Post-concussion syndrome is not the same as CTE.
Though they share some symptoms, post-concussion syndrome is not progressive or degenerative. Your symptoms may resolve or improve over time with appropriate medical care.
What is the Average Settlement Amount for Post-Concussive Syndrome?
Determining the average settlement amount for post-concussive syndrome cases is difficult. Some of you may have to deal with its symptoms long-term, while others will experience the resolution of symptoms within a few months or a year.
The average workers comp settlement amount for post-concussion syndrome ranges from $50,000.00 to $105,000.00 or more.
The average car accident settlement for post-concussion syndrome varies even more, with a range from $55,000.00 to $1,000,000.00 or more, depending on the available auto insurance coverage.
What are Common Defenses Raised by Insurance Companies in Post-Concussion Syndrome Cases?
Winning a personal injury or workers comp case involving post-concussion syndrome and post-traumatic headaches is complicated, but possible. The claim adjuster or defense attorney for the insurer or claim administrators, such as Sedgwick or Gallagher Bassett, will argue that you are not entitled to the benefits or money you seek because the injuries aren’t visible. But you can overcome this.
Below are a few defense arguments you should be aware of when negotiating the fair settlement of your post-concussive syndrome case.
Vague Symptoms
Medical may disagree about whether you have post-concussion syndrome because the symptoms of this medical condition are similar to symptoms of other medical conditions.
The insurance company will hire an expert witness to perform an Independent Medical Evaluation (IME). Despite the name, there is nothing independent about these evaluations. Often, they are short exams conducted by a doctor with a longstanding relationship with the insurance company. Usually, they result in the conclusion that you do not suffer from post-concussion syndrome and are capable of working.
There is a risk that the judge or jury may find against you when there is conflicting medical evidence. This uncertainty is a major factor in deciding whether to accept a settlement or go to trial.
Normal Diagnostic Imaging
Mild traumatic brain injury is often called an invisible injury. That’s because those of you with post-concussion syndrome likely have no demonstrable abnormalities on diagnostic imaging tests such CT scans, MRIs, or electroencephalography.
The insurance company will make a big deal about this, arguing that there can be no injury without objective imaging supporting your claim.
The empirical evidence has debunked this argument—a concussion results in an objective brain injury. MRIs and CT scans aren’t sensitive enough to detect the damage in most cases.
Malingering
The lack of objective findings on diagnostic imaging results in some people, including claim adjusters, judges, and potential jury members, believing there is nothing wrong with you. They may allege or think you are exaggerating your symptoms to receive more money or workers comp benefits. This type of exaggeration is called malingering.
Research shows these beliefs are unfounded. Malingering is rarely a cause of post-concussive syndrome. At least one study suggests that TBI patients with active workers compensation or personal injury litigation do not present with more symptoms than those who do not have open claims.
Exacerbation (Worsening) of Existing Headaches, Depression, or Anxiety
The most challenging post-concussion syndrome cases involve a victim with pre-existing headaches, depression, or anxiety. The insurance company will hire neurological experts to state that it is impossible to determine how much your pain, depression, or anxiety is related to the crash. And that you should receive no monetary damages because of this.
The best way to overcome this type of defense is through evidence and testimony showing how well you could function before the injury. For example, if you could work despite having headaches or depression before the car crash, but are now unable to, this is helpful.
Factors that Increase the Post-Concussion Syndrome Settlement Amount in Workers Compensation and Auto Accident Cases
Below are some of the factors I evaluate when calculating a post-concussive syndrome case’s fair settlement value under workers compensation and tort law.
- Whether the insurer accepted liability for the accident: Your claim has more value if compensability or liability is undisputed, and you have received a Workers Compensation Award Letter. If the insurer disputes liability and you need to prove your case at a workers comp hearing, your claim may have a lower value. It depends on the strength of the insurer’s defenses.
- Your earnings when you were hurt. The amount of workers comp payments is based on how much you earned when you were injured. This number is called the pre-injury average weekly wage. It is the starting point for calculating how much you receive in Temporary Total Disability, Temporary Partial Disability, and Permanent Partial Disability benefits.
- Whether the insurer has paid weekly wage loss benefits. Most states, including Virginia, have a cap on the number of weeks of wage loss benefits you can receive under workers comp. In Virginia, you can receive up to 500 weeks of indemnity benefits in most cases. If you have received a significant number of weeks of benefits, your case has a lower settlement value because the insurer has already paid a considerable amount.
- Whether the insurer has paid medical bills to date: Your employer is responsible for medical expenses related to your post-concussive syndrome if you prove it’s covered under the Workers Compensation Act. Your case may have more settlement value if private health insurance has paid for medical attention so far. You may settle on a denied and disputed basis with the workers comp insurer paying you more money in exchange for not covering medical care.
- Whether you’re capable of returning to your pre-injury job: A full duty release lowers your case’s value. Permanent restrictions, on the other hand, increase it. You may have difficulty returning to your pre-injury job if you suffer from the symptoms of post-concussion syndrome. For example, I’ve represented many truck drivers, nurses, teachers, and warehouse workers for Amazon, American Airlines, United Airlines, Target, Wal-Mart, and Kroger who changed careers.
- Whether the brain imaging shows damages or changes after the accident: Fair or not, insurers, judges, and juries respond better to visible proof an injury.
- Whether you had a loss of consciousness or suffered amnesia in the accident. Your Glasgow Coma Scale score can help prove you suffered a brain injury and strengthen your case.
- Evidence of property damage or a significant collision: This applies to work-related motor vehicle accidents, falls, and post-concussive syndrome resulting from an assault and battery. The more damage your car or truck suffered in the accident, or the more significant the height of your fall, the more likely it is that an insurer, judge, or jury will believe the other evidence about your symptoms and disability.
- Whether you will require home health care: Some of you may need help completing daily living activities. If your treating doctor prescribes home nursing, the insurer may be responsible for this service’s payment.
- Whether you suffered orthopedic injuries in the same accident: The presence of orthopedic injuries – injuries to knee, hand, eye, ACL, rotator cuff, neck, or back – often results in a delayed diagnosis of concussion. Cases involving post-concussive syndrome and physical injuries often settle for more money.
- Whether you develop PTSD because of the accident: You may qualify for medical and cash benefits if you have PTSD because of the car wreck or workplace accident. PTSD is a common compensable consequence of brain injury.
- Whether your claim settles with open or closed medical: Most workers comp settlements include a cash buyout of future medical treatment. Your future medical expenses, therefore, determine part of the value of your case.
- Whether a resignation is required as part of the settlement: Many employers ask an injured worker to sign a resignation and release potential employment claims to settle the case. Make sure you receive a separate payment for signing this document.
- Whether you have the testimony of at least one doctor, and preferably multiple health care providers, that your work accident or motor vehicle accident caused your headaches, dizziness, and depression and that you are unlikely to get relief any time soon.
- Whether you appear credible: Credibility and likeability determine most brain injury and post-concussive syndrome cases because the symptoms are subjective. The more reliable you seem, the more likely you are to negotiate a fair amount.
- Whether you have others willing to testify about the difference between your pre-injury capabilities and personalities and what you’re like now. Having represented many car accident victims and workers compensation claimants with post-concussion syndrome, I’ve seen the toll this condition can take not just on the accident victim but also on family members and friends. Many people with post-concussion syndrome report feeling isolated and ashamed. They are not capable of completing the same tasks they could do before their brain injury. And they feel bad that family members have to do more to make up for this. Post-concussion syndrome sufferers may also feel bad that they cannot spend as much time with their children or play sports with them anymore. Testimony from friends, clergy, co-workers, and family boosts your credibility.
- Pain and suffering: Though workers comp does not pay damages for pain and suffering, personal injury claims do. If you have a third-party claim, include an amount for physical pain and suffering, mental anguish, and loss of enjoyment of life in your settlement demand.
When is the Best Time to Settle a Post-Concussion Syndrome Case?
Post-concussion syndrome may affect your ability to work and enjoy life for a long time. That’s why I recommend waiting at least one year to settle your brain injury case. You can – and should – file a claim for workers comp benefits or a civil action within the applicable statute of personal injury limitations. But don’t settle that quickly.
Of course, there are exceptions. In my experience, young adults between ages 18 and 30 usually recover from a concussion quicker. If you fall within this age range, it may make sense to settle sooner rather than later – when the insurer still thinks you may not have a full recovery.
Can I Receive Social Security Disability for Post-Concussive Syndrome?
Yes, if you prove you are eligible for disability benefits under the Social Security Act.
The general rule is that you can receive Social Security Disability for post-concussive syndrome if your symptoms prevent you from returning to your pre-injury job or performing a light-duty job, given your age, education, and work skills.
The older you are, the more likely it is you will qualify for Social Security Disability.
A Top-Ranked Lawyer to Help You Negotiate a Post-Concussion Syndrome Settlement in Your Injury or Workers Comp
I handle car accident and workers comp cases involving catastrophic injuries such as post-concussion syndrome, amputation, spinal cord trauma, and burn injuries. Regardless of whether the Workers Compensation Commission or circuit court system has jurisdiction, I can get results for you.
Call today to see why my fellow attorneys and past clients have voted me one of the top work injury lawyers in Virginia: (804) 251-1620 or (757) 810-5614. I want to help you negotiate a post-concussion syndrome that provides financial security to you and your family.
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