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.
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:
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.
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.
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:
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.
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:
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.
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:
You will require follow-up appointments to monitor your status post-head injury.
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:
Workers comp covers medications that can relieve symptoms of brain injury.
For example, your medical providers may prescribe:
There are many potential causes of head injury on the job.
Work-related traumatic brain injuries are often caused by:
You have an increased risk of suffering work-related traumatic brain injury if you work in one of the following industries:
If you suffer a work-related brain injury, you may have several options to recover money for your losses.
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.
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.
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.
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.
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.
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.
Your pre-injury average weekly wage determines your compensation rate, which is used to determine the amount of wage loss and permanency benefits.
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.
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:
It’s common for total treatment costs for head injury to range from $100,000 to $1 million or more.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.