Head Injuries (TBI)
A head injury in the workers' compensation system can be tricky. The current system requires use of a book called the AMA Guides which rates "medical impairment." Medical impairment often does not take into account functional loss. Functional loss is essentially how you are limited in your daily life and work. Medical impairment often times will not take into account the head injury impact.
If a person has a head injury in an accident, it can be very disabling and symptoms can be hidden. In most cases, when I meet with a client, it's useful to have a significant other present. Often my clients will say that there's nothing wrong with them, but the other person will say "that's not true." That other party will give you a list of symptoms that the client isn't even aware. The big point is disability can be hidden and does not appear to be a problem until the person attempts to function in their daily life.
Symptoms can include problems (or change in ability) with one or more of the following:
- Social Control;
- Sexual Control;
- Verbal Expression;
- Problem Solving;
- Decision Making;
- Expressive Language;
- Motor Integration;
- Voluntary Movement;
- Short-Term Memory;
- Receptive Language;
- Language Comprehension;
- Muscle Awareness;
- Selective Attention;
- Object Categorization;
- Locating Objects;
- Face Recognition;
- Aggressive Behavior;
- Touch Perception;
- Spatial Orientation;
- Awareness of Body Parts;
- Academic Skills;
- Object Naming;
- Right / Left Organization;
- Visual Attention;
- Eye-Hand Coordination;
- Visual Perception;
- Visual Processing;
- Coordination of Voluntary Movement;
- Gross and Fine Motor Coordination;
- Postural Control;
- Balance and Equilibrium;
- Eye Movement;
- Change in Heart Rate or Breathing
- Change in Temperature
- Arousal and Sleep Regulation;
- Swallowing Food and Fluid;
- Balance and Movement;
The AMA Guides can totally miss disability on these areas unless the attorney understands how to apply the book to a head injury. Head injuries can go well beyond the chapter that appears to address that type of injury (neurological chapter) and can extend into multiple chapters in the book.
Medical treatment for a severe head injury / TBI focuses on the following:
- Preventing death;
- Stabilizing the person's spinal cord, heart, lung, and other vital organ functions;
- Preventing further brain damage;
- Persons with severe TBI generally require a breathing machine.
Usually my clients have been through this process before they contact me, because it's immediate care that is required after the accident.
During that period of care, the injured worker's blood pressure, flow of blood to the brain, brain temperature, pressure inside the skull and brain's oxygen supply are monitored.
Some people with severe head injuries require surgery to relieve pressure inside the skull or to remove a hematoma.
Following the hospital period, people with severe head injuries are often transferred to rehabilitation centers. At those centers, there are usually a team that includes neurologists, nurses, psychologists, nutritionists, as well as physical, occupational, vocational, speech, and respiratory therapists.
Cognitive therapy is often used in head injury cases; it is designed to assist individuals to regain normal function through a custom program. These programs will teach coping strategies for symptoms that are persistent such as memory loss, problem solving, and thinking skills.
Injuries that occur on or after 01/01/2013 do not allow disability for psychiatric injuries that are consequence of head injuries. For example, a head injury can have significant psychological impact, however, on the surface the law does not allow additional permanent disability for psychiatric disability. Understanding the nuances of the law does lend itself to exceptions to the rule. It's not just knowing the rule; it's understanding how to develop the case in a fashion that the exception to the rule is applied.
Social Security / Medicare
In many catastrophic claims, the injured worker is eligible for Social Security Disability. Although that is not an area of law we handle, it's important that a workers' compensation attorney understand the impact of Social Security with the workers' compensation claim; special paperwork needs to be done.
Additionally, Medicare is a critical benefit especially if the injured worker has other health conditions. A workers' compensation settlement can impact Medicare rights, therefore, your attorney must understand how to prepare the proper paperwork that Medicare will approve.
Structured Settlements / Medicare Set Aside Trusts
If you are on Social Security Disability and/or you are a Medicare beneficiary, then a Medicare Set-Aside Trust (MSA) would be required before you settle your case by Compromise and Release. The workers' compensation insurance company would obtain a MSA from a company who prepares them. Then that MSA would need to be submitted to CMS (the third-party agency that Medicare uses to address these issues). The MSA company would need all medical records from your workers' compensation case in the last two years, a prescription list from all pharmacies for the last two years, and a Social Security Administration release.
Special Needs Trusts
If a client is on Medi-Cal, public assistance, welfare, or any other benefit which is dependent on income and assets, a Special Needs Trust may need to be set up in order to properly settle a workers' compensation case.
Pre-Existing Conditions Combined With Crush Injuries
If a client has a head injury, that injury alone does not limit them from having a productive future at work in a lot of cases. However, in some cases where the head injury alone does not preclude work, the injured worker has pre-existing injuries, health conditions, anxiety, depression, and other disabling conditions that the worker could manage before the head injury. However, the head injury has put the client "over the edge" as far as ability to work in the labor market.
Basically, from a practical point of view when you combine the pre-existing problems with the head injury, the client cannot function in the open labor market. This doesn't mean that they can't live their life; it means they cannot compete in a competitive job market. There is a special type of workers' compensation claim called a Subsequent Injuries Benefit Trust Fund (SIBTF) claim and that type of claim is one your attorney should understand and consider in these situations.