Head Injury at Work: Workers’ Compensation Settlements for Concussions and Traumatic Brain Injury (TBI)

 

Guide to Winning Workers’ Comp for Head Trauma, Concussion, and Traumatic Brain Injury

 

Medical providers use many terms for brain injury. 

 

Acquired Brain Injury. Blunt Force Trauma to the Head. Cerebral Concussion. Closed Head Injury. Concussion. Contrecoup Injury. Coup Injury. Diffuse Axonal Injury. Intracranial Injury. Mild Head Injury. Mild Traumatic Brain Injury. Open Penetrating Head Injury. Post Concussion Syndrome. Skull Fracture. Traumatic Brain Injury. And others.

 

No matter the medical term used or the type of head injury suffered, traumatic brain injury is a severe injury that differs from typical orthopedic injuries – injuries to the back, neck, shoulder, hip, hand, or knee – in many ways. 

 

If you are reading this article, you or a loved one suffered a work-related head injury resulting in a concussion and post-concussion syndrome or worse. You are not alone. About 1 in 4 brain injuries in adults happen at work or while performing a work-related task.

 

This article aims to discuss workers comp TBI and head injury claims – both the medical science and the legal concepts you should know to prosecute your claim. Employers and insurers often defend head injury claims aggressively because they know how costly they can be. I hope you use this information to win your case and negotiate a fair workers comp settlement amount. 

 

If you have questions about your case or are looking for a top-rated workers comp attorney or car accident lawyer to represent your interests while you focus on healing, call me for a free consultation: (804) 251-1620 or (757) 810-5614. I’ve helped hundreds of brain injury victims negotiate workers comp and personal injury settlements – and I want to help you.

 

 

Definition of Traumatic Brain Injury

 

You have suffered a traumatic brain injury when blunt force to the head or penetrating trauma damages the brain and results in impairment(s) or change(s) in one or more functions:

 

• Affect
• Attention
• Behavior
• Concentration
• Emotion
• Executive functioning
• Information processing
• Insight
• Judgment
• Language
• Memory
• Mood
• Movement
• Perception
• Reasoning
• Speech

 

These impairments may be temporary, or they may result in permanent disability. 

 

The longer your symptoms last, the greater the potential value of your head injury settlement. 

 

Classifying the Severity of Traumatic Brain Injury

 

There are many types of traumatic brain injury, but they all fall within three categories: mild, moderate, or severe. 

 

Doctors will classify the severity of your head injury soon after it happens. Whether you suffered a severe, moderate, or mild brain injury depends on your consciousness level and response to cognitive, behavioral, neurological, and visual cues. 

 

The most common head injury type is a mild traumatic brain injury, also called a cerebral concussion. 

 

A mild brain injury can result in serious, long-term complications. Some claim adjusters and judges have a difficult time understanding that.

 

For more information on the methods used to classify TBI severity, read my article: Glasgow Coma Scale: Levels of Brain Injury.

 

Prevalence of Traumatic Brain Injury

 

Traumatic brain injury is a leading cause of death and disability for adults and children in the United States.

 

According to data from the Brain Injury Association of America, the Centers for Disease Control and Prevention (CDC), and other sources:

 

• The incidence of traumatic brain injury in the United States is estimated to be from 200 to 618 per 100,000 population per year, with more than one million Americans sustaining a brain injury each year.

 

• Each year more than 50,000 people die from a traumatic brain injury.

 

• Each year several hundred thousand Americans are hospitalized because of a traumatic brain injury.

 

• Scientists estimate that more than 5 million people live with a traumatic brain injury in the United States at any one time.

 

Children under age 4, teenagers between ages 15 and 19, males, and military members and veterans are at the most significant risk of suffering a traumatic brain injury.

 

Diagnosis of Traumatic Brain Injury

 

A brain injury diagnosis often requires evaluation by multiple healthcare providers such as an emergency room doctor, neurologist, neuropsychologist, neurosurgeon, physiatrist, speech and language pathologist, psychiatrist, and primary care physician. 

 

Usually, a brain injury diagnosis requires:

 

• Taking a complete medical history and asking how the injury happened.

 

• Interviewing family members, coworkers, or other witnesses to determine how the injury happened and to compare your mental state before and after the injury. 

 

• Diagnostic tests that image the brain, including x-ray, computed tomography scan (CT scan), electroencephalogram (EEG), or magnetic resonance imaging (MRI).

 

• Neuropsychological testing to detect any emotional, cognitive, or behavioral changes

 

• Monitoring your status for several weeks after the brain injury and referring you to specialists.

 

It may take several weeks to understand the full extent of your head injury.

 

For more information on this topic, please read my article: The Types of Doctors and Health Care Providers Who Treat Traumatic Brain Injury.

 

Treatment of TBI

 

Every brain injury is different. Some of you may recover fully after a few weeks or months, while others will require lifelong treatment and support.

 

There are many types of therapy, diagnostic testing, treatment options, and community support available to you after your head injury. The goal is to maximize your capabilities after the injury – both at home and out in the community.

 

In the days and weeks after your work-related brain injury, your medical providers will focus on stabilizing your condition and preventing complications and secondary injuries.

 

Once your condition stabilizes, you will receive rehabilitation services and therapy. The amount and level of rehabilitation therapy you receive depends on your level of awareness, whether you are dealing with other injuries that affect your mobility, and whether you show improvement.

 

Most of my head injury clients require a team of concussion specialists and medical providers during their recovery, with each provider having a different specialty. This team oversees and prescribes traumatic brain injury treatment and therapies, which may include:

 

Hospitalization

 

• Emergency Care. This care stabilizes you immediately after the accident and ensures adequate oxygen flow to the brain.

 

• Intensive Care Unit (ICU). If you suffered a moderate to severe brain injury, you might require monitoring in the hospital’s Intensive Care Unit after emergency care.

 

• Step-Down Unit (SDU). Once your medical condition stabilizes, you may move to a room in the Step Down Unit.

 

Follow Up Treatment with Doctors

 

You will require follow-up appointments to monitor your status post-head injury. 

 

Rehabilitation and Therapy

 

Usually, therapy for brain injury starts in the hospital or after the first medical appointment. It helps you relearn old skills and learn new ways to complete activities that you now have trouble doing.

 

Types of rehabilitation therapy for your brain injury may include:

 

• Acupuncture
• Chiropractic treatments
• Cognitive therapy
• Massage therapy
• Mental health counseling, especially if you are experiencing Post Traumatic Stress Disorder (PTSD) or depression after your work accident.
• Occupational therapy
• Physical therapy
• Speech therapy
• Vision therapy
• Vocational rehabilitation and counseling

 

Medications

 

Workers comp covers medications that can relieve symptoms of brain injury.

 

For example, your medical providers may prescribe:

 

• Anti-anxiety medication
• Anticoagulants (blood thinners)
• Anticonvulsants, if you are experiencing seizures after your head injury
• Antidepressants
• Muscle relaxers
• Stimulants

 

What are the Common Causes of Workplace Concussion and Head Injury?

 

There are many potential causes of head injury on the job.

 

Work-related traumatic brain injuries are often caused by:

 

• Motor vehicle crashes, such as those involving car accidents while working, forklifts, cranes, and other heavy machinery.

 

• Slip and falls

 

• Trip and falls

 

• Falls from heights, such as ladders, scaffolds, roofs, or the top of a tractor-trailer or dump truck

 

• Workplace violence, such as when a student assaults a teacher or patient assaults a nurse

 

• Recreational events at work, such as when teachers compete in student-faculty games or employees participate in team-building activities

 

• Falling objects, such as when a heavy box falls from shelving onto a warehouse worker at Amazon or an order picker at Walmart

 

• Toxic chemicals, including metals, lead, arsenic, mercury, carbon monoxide, solvents (glues, paint thinners, detergents, etc.), fuels, and pesticides 

 

What Occupations Have the Highest Risk for Head Injury?

 

You have an increased risk of suffering work-related traumatic brain injury if you work in one of the following industries:

 

• Construction: Construction workers, including general laborers, electricians, plumbers, and roofers, have the highest risk of suffering both fatal and nonfatal traumatic brain injuries on the job.

 

• Manufacturing, warehouse, or factory work: This type of work may expose you to falling objects, heavy machinery, and toxic chemicals that can harm your brain. 

 

• Police, firefighter, or emergency first responder

 

• Nursing or mental health counselor: Helping patients, especially those with mental health problems or difficulty moving independently, puts you at risk of suffering a concussion.

 

• Teaching: Teaching special education students, some of whom have behavioral or emotional difficulties, is often a physical job that puts you at risk of workplace violence and head injury.

 

• Trucking and delivery: Those who drive and deliver goods for a living, such as drivers for UPS, have a higher risk of being hurt in an auto accident, which is a leading cause of head injury.

 

• Aviation: I have represented many airline employees, including flight attendants for carriers such as American Airlines and United Airlines, that suffered head injuries caused by luggage falling from overhead bins or turbulence throwing them into the wall.

 

What are My Options for Compensation for a Work-Related Head Injury? 

 

If you suffer a work-related brain injury, you may have several options to recover money for your losses.

 

• Workers comp: Workers compensation provides medical care and cash benefits to employees who suffer an injury by accident arising out of and in the course of their employment. The general rule is that workers comp is the exclusive remedy for a head injury on the job, meaning you cannot sue your employer. 

 

• Social Security Disability: You can receive both workers comp and Social Security Disability benefits at the same time. To receive Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits for a work-related head injury, you must prove that your symptoms prevent you from returning to any job you’ve had in the past 15 years. You may also need to prove that you’re unable to perform other positions depending on your age, education, and work history. It’s easier to qualify for SSDI or SSI if you are age 50 or older. Read my article, How to Prove Disability under the Social Security Act, for more information. 

 

• Work-related disability retirement benefits through the Virginia Retirement System (VRS). If you suffered your head injury while working for the Commonwealth of Virginia, a local government (city, county, or town) or a school board, you may qualify for VRS and workers comp at the same time. 

 

• Short-term disability followed by long-term disability if your employer paid for the coverage or you paid for it out of pocket. You can receive both workers compensation and long term disability payments at the same time.

 

• Personal injury lawsuit. There are some situations where workers comp is not your exclusive remedy and you can file a civil action against your employer or a third-party. But you must prove that the third-party was negligent under tort law. For example, you may receive workers comp payments and file a personal injury lawsuit if your head injury was caused by:

 

• • Another driver, in which case you may sue that driver.

 

• • A defective product, such as a tool or piece of machinery, in which case you can sue the product manufacturer and distributor.

 

• • Unsafe work conditions that violate OSHA Rules and Regulations if those conditions were created by another contractor that you do not work for, in which case you can sue that company.

 

• • Dangerous property conditions if your employer does not own the property. You can sue under the theory of premises liability.

 

If you have a third party claim arising out of your work-related brain injury, remember to consider the workers comp lien and subrogation interest when settling that claim.

 

What is the Difference Between Workers Comp and Personal Injury Settlements for Head Injury? 

 

If you’ve suffered a brain injury on the job, you may have both a workers comp claim and a personal injury lawsuit under negligence and tort law. There are a few differences between the two. 

 

• Fault: Workers comp is a no-fault system. You could receive benefits even if your negligence caused the head injury. By contrast, you must prove that someone else’s negligence caused your TBI to recover damages through a personal injury action. This is known as proving liability. 

 

• Cap on damages: Workers comp indemnity benefits – temporary total disability, temporary partial disability, and permanent partial disability – are set by statute and are limited to 500 weeks of wage loss benefits at two-thirds your pre-injury average weekly wage. There is no cap on the amount of money you could receive through a personal injury lawsuit. However, the amount of available auto insurance coverage could limit how much money you collect. 

 

• Pain and suffering: You cannot recover for pain and suffering under workers comp. By contrast, personal injury lawsuits allow you to receive damages for physical pain and suffering and mental anguish. 

 

• Jury trial: You do not have the right to a jury trial through workers comp. The Workers Compensation Commission has jurisdiction over your case, and a judge will decide all disputed issues. With a personal injury lawsuit, you have the choice of settlement or trial, in most cases, and you can ask for a trial by jury. 

 

• Wait time for payment: Workers comp may pay benefits immediately if the claim is accepted, and a Workers Compensation Award Letter is entered. If the case is disputed and a workers comp hearing is necessary, you will receive a decision in less than one year. Usually, personal injury lawsuits take longer.  

 

When determining a brain injury case’s settlement value, the main differences between workers comp and personal injury are liability and pain and suffering. You don’t have to prove that someone else is liable for your losses under workers comp, but you give up the right to compensation for pain and suffering.

 

What is the Average Workers Compensation Settlement Amount for Traumatic Brain Injury?

 

Every head injury case is unique, with many variables determining a fair TBI settlement amount. This makes it challenging to decide on an average workers comp settlement value for brain injury cases.

 

Workers comp claims involving the head, brain, or central nervous system are the most costly claims on average – no matter the level of severity. Data shows that insurers and claim administrators such as Gallagher Bassett and Sedgwick pay about $97,000 per traumatic brain injury claim. The only other types of workers comp claims that come close to this average cost are those involving herniated discs resulting in spinal fusion, amputation, and burn injuries.

 

This data is consistent with my experience. A typical workers comp settlement for traumatic brain injury ranges from $75,000 to $205,000 or more. These numbers reflect that work-related head injuries, including concussions, result in lifelong symptoms, occupational disability, and the need for extensive medical treatment, counseling, and vocational rehabilitation services.

 

What Factors Affect the Settlement Value of a Workers Comp Head Injury Claim?

 

Below are several factors that I consider when determining a fair workers compensation settlement range in a traumatic brain injury case. 

 

These factors are a starting point. There are many more variables you will need to analyze during settlement negotiations. 

 

Does the Insurer Accept That You Suffered a Compensable Head Injury?

 

The first step in evaluating a head injury claim for settlement is determining if there is a dispute about liability and coverage. 

 

If the insurer agrees that you suffered a head injury arising out of and in the course of your employment, your claim is worth more. 

 

If the insurer has raised defenses to your claim and you have to go to trial, the settlement value is likely lower because there is a risk the Commission denies your claim. 

 

How Much Did You Earn Before the Injury?

 

Your pre-injury average weekly wage determines your compensation rate, which is used to determine the amount of wage loss and permanency benefits.

 

Cost of Medical Treatment to Date

 

Did you require a lengthy hospitalization for your brain injury, followed by several weeks in a rehabilitation or skilled nursing facility?

 

If so, did the workers comp insurer or your private health insurance company pay for it? Or are the bills outstanding? 

 

If your health insurance, Medicaid, or Medicare has paid for your treatment, or some bills are unpaid, include the total amount in your settlement demand. Ask your lawyer for a debt collection stay letter also. 

 

Future Medical and Rehabilitation Needs for Your Head Injury

 

Those of you who suffer a traumatic brain injury may never return 100 percent to your pre-injury state, but regain most of your functional abilities. At least enough to be independent.

 

Others, especially those of you who suffered a moderate or severe brain injury, may never be functional and independent again. One study found that the longer the period of unconsciousness at the time of the accident, the greater the insurance carrier’s medical reserve.

 

Most workers comp settlements require you to cash out future medical benefits. Make sure you consider the cost of the following:

 

• Future doctor appointments
• Medication
• Counseling
• Nursing care
• Transportation to and from medical appointments

 

It’s common for total treatment costs for head injury to range from $100,000 to $1 million or more.

 

Ability to Return to Work

 

Research shows that returning to some form of employment after suffering a head injury can help you recover. 

 

However, multiple studies of traumatic brain injury victims have found that a significant percentage of head injury survivors are unable to return to work.

 

Those of you that do may require accommodations, such as flexible work schedules, fewer tasks, and the ability to take frequent breaks throughout the day. But not all employers, especially those in construction, manufacturing, or a healthcare setting, are willing or able to provide accommodations.

 

Make sure you consider what type of permanent restrictions you may have because of your traumatic brain injury and how long it may take to find a light-duty job that accommodates those restrictions. This factor affects your claim’s value.

 

Life Expectancy

 

Generally, the younger you are at the time of your work-related head injury, the greater the insurance company’s settlement value.

 

That is because you may require wage loss benefits and medical treatment for a more extended period.

 

Other Injuries Suffered in the Work-Related Accident

 

Many of my traumatic brain injury clients suffered orthopedic injuries in the work accident.

 

Make sure you consider the restrictions and permanent impairment you have because of those injuries and the future medical care you may need when negotiating a full and final settlement.

 

Is a Resignation Required?

 

Those of you who suffer a concussion may return to light-duty work with your pre-injury employer.

 

If you are working light duty, but the employer asks you to resign as a settlement term voluntarily, make sure you negotiate more money for giving up any employment law claims.

 

Availability of Other Sources of Income and Benefits

 

Earlier in the article, I discussed other forms of compensation you may receive for your brain injury.

 

Make sure you consider the interaction between these other forms of compensation and disability benefits when deciding whether to settle your head injury claim and for how much.

 

Often it makes sense to settle your workers comp claim and include specific language that allows you to maximize the other benefits and sources of income available to you because of your head trauma.

 

What are Common Litigation Strategies Used by Insurance Companies to Defend Traumatic Brain Injury Claims?

 

Head injuries make up many workers comp mega claims, which require the employer or its insurer to pay more than $2 million in medical costs and indemnity benefits. 

 

Because of this, there is a high likelihood that the insurance carrier will aggressively defend your head injury claim. 

 

Below are some of the common defense tactics I see used in brain injury claims.

 

Statute of Limitations

 

There are at least two deadlines you must satisfy to protect your right to workers comp. 

 

The first is reporting your accident and head injury to your supervisor or the insurance carrier within thirty days is necessary. You can use my sample work injury letter. 

 

The second is the statute of limitations. You have two years from the date of the work accident to file your workers comp claim.

 

Missing either deadline may bar your right to benefits. 

 

No Loss of Consciousness

 

Some insurance defense attorneys will argue that an employee did not suffer a brain injury because they did not lose consciousness.

 

This defense is wrong and inconsistent with the views of medical professionals that specialize in concussions.

 

It is possible to suffer a brain injury resulting in permanent and severe symptoms without losing consciousness at the time of the initial accident.

 

Ordinary Diagnostic Evidence (MRIs and CT Scans)

 

Unlike orthopedic injuries such as fractures, not all head injuries show up on diagnostic exams such as MRIs and CT scans. Most don’t.

 

That is why traumatic brain injury is often called an invisible injury.

 

The adjuster or defense attorney may point to the lack of abnormal diagnostic testing to persuade you to accept a lower settlement offer. Ignore this argument.

 

Unexplained Accident

 

Those of you who lose consciousness because of your head injury may face another defense: that your accident is unexplained. Therefore, you cannot prove that your injury arose out of a specific risk of your employment.

 

Proving that your injury happened on the job is not enough to get workers comp. You must also prove that your injury arose out of and in the course of your employment.

 

This second prong – “arising out of” – requires that you explain what caused your injury.

 

But this may be difficult to do if you lose consciousness and suffer memory loss (amnesia) because of your workplace concussion. The Workers Compensation Act and Rules of the Workers Compensation Commission only provide a presumption that your head injury arose out of a risk of your employment if you cannot testify at the trial. 

 

Use the workers compensation discovery process, including interrogatories, requests for production of documents, requests for admissions, and depositions, to find all available facts, witnesses, and documents that can help you prove your head injury arose out of your employment risk.

 

If you have a pre-existing condition, such as syncope, ask your doctor if that caused you to blackout during the accident. Injuries resulting from idiopathic conditions are covered under workers comp if your employment puts you at a greater risk of injury. 

 

Your Head Did Not Strike an Object

 

Some insurers argue that you cannot suffer traumatic brain injury unless you strike your head on an object, or an item hits your head.

 

They’re wrong. 

 

It is possible to suffer a concussion or other type of brain injury without striking your head. These injuries are often called acceleration/deceleration or coup contrecoup injuries.

 

Hiring Expert Witnesses

 

Insurers almost always ask head injury victims to attend an Independent Medical Examination (IME), also called a compulsory Defense Medical Examination (DME). The law gives them the right to request this.

 

Usually, the IME doctor is a physician who has never examined you.

 

Insurance companies use these “hired guns” to find a way to deny your claim. Do not be surprised if the IME doctor goes so far as to say you never suffered a concussion, even if the Workers Compensation Commission has entered an Award Order stating that you have. The IME doctor may also accuse you of malingering, which is a fancy word that means exaggerating symptoms for financial gain. 

 

Pointing Out that You Did Not Report Some Symptoms Until Weeks Later

 

The effects of a concussion are not always immediate. Sometimes it will take days or even weeks for some symptoms to develop.

 

The insurance company may use this delay in developing symptoms to attack your credibility or imply that you are a liar.

 

But this defense is not supported by medical science.

 

Because of the nature of primary and secondary brain injury, you may not know the extent of your head injury until weeks after the workplace accident.

 

Prying Into Your Medical History and Personal Life

 

Depression, anxiety, PTSD, and cognitive decline are expected results of head injuries at work.

 

Don’t be surprised if the insurance carrier asks you to sign a Medical Records Release so that it can pry into your past medical history. It will argue that pre-existing psychiatric illnesses or past concussions, not your work accident, are to blame for your current symptoms. Many insurance companies will even try to get your education records to see if you have a history of intellectual disability or learning disability.

 

In workers comp, the employer and its insurer must take you as they find you. That means that if your head injury causes a worsening or exacerbation of a pre-existing condition, then the insurance carrier must pay benefits.

 

Talk to a Top-Rated Lawyer About Your Workers Comp Brain Injury Claim

 

Head trauma on the job can change your life forever.

 

One minute you’re fine. The next, you are looking at years of therapy, frequent doctor appointments, lifelong rehabilitation, constant headaches, an inability to do things that were once easy to do. You may even need in-home care or to move to a nursing home.

 

I understand the devastating consequences of traumatic brain injury. And can help you get the compensation, medical treatment, and disability benefits you need and deserve for your head injury – through direct negotiation, mediation, or trial. I also work with community organizations and medical providers who treat under Letters of Protection to help you and your family get the support you need while waiting for a settlement. 

 

Call me today if you suffered a brain injury at work: (804) 251-1620 or (757) 810-5614. I help injured employees throughout the nation get the benefits and TBI settlements they deserve.