Brain Injury and Workers’ Compensation

Posted on Wednesday, September 16th, 2020 at 11:23 am    

Many workers suffer traumatic brain injuries due to falls, violence, being struck by objects, and other reasons. According to the Centers for Disease Control and Prevention, over 150 people in the United States die each day from a traumatic brain injury. In 2014, 2.87 million people sought emergency department treatment for a TBI.

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For some survivors, the effects of the TBI may last just a few days. For others though the effects of a TBI can last their entire life. Many TBI victims suffer physically, emotionally, and cognitively. They may have difficulty with movement, the senses, memory, depression, and other injuries. Often, a TBI affects the entire family as the victim tries to adjust to a less functional life.

What is a TBI?
A traumatic brain injury is due to a blow or jolt to the head that affects the normal functioning of the brain. TBIs are generally categorized as mild (“a brief change in mental status or consciousness”) or severe (“an extended period of unconsciousness or memory loss after the injury”).

What workplace injuries cause a TBI?
Some accident types cause traumatic brain injuries more than others. Some of the leading causes of TBIs due to workplace accidents or incidents include:

  • Accidents at construction sites. Workers at these sites can suffer a TBI due to:
    • Falls from high heights. Workers who fall from a scaffold, ladder, or any object this high above the ground can strike their head causing a TBI.
    • Being struck on the head by a piece of equipment, by tools, or by debris
    • Being struck by a forklift, a crane, or other types of moving vehicles and machinery
  • Slips and falls. A slip and fall which causes the worker to strike his/her head can occur almost anywhere including – warehouses, construction sites, retail stores, restaurants, and factories. Common causes of slips and falls include:
    • Wet or slippery surfaces
    • Uneven surfaces
    • Broken tiles
    • Areas that are poorly lit
    • Falls on any place that has ice or snow that hasn’t been cleaned up
  • Vehicle accidents. If an occupant of a truck, car, bus, or other vehicle is involved in an accident; his head can strike the dashboard, other passengers, the sides of the doors, or the windshield. The violent twisting of the head after any crash, even when the occupant is wearing a seatbelt or is saved by an airbag, can also cause a TBI.
  • Worksites where explosions may occur. Oil and gas workers and firefighters may suffer a violent blow to their head.
  • Violence in the workplace. An irate worker or customer may take out his/her frustrations on a coworker. Teachers may be assaulted by students. Nurses may be assaulted by a patient with mental disorders. Police officers and law enforcement have a daily risk of being attacked or assaulted which can result in a TBI.
  • Recreational activities. Many workplaces encourage their workers to bond through sports and other team-building exercises. A worker who is struck by a baseball, is tackled by another worker, or falls off a bicycle can suffer a traumatic brain injury.

Workers at warehouses and any place that stores inventory can be struck by a heavy object while shelving or getting an item. Roofers, plumbers, electricians, contractors, and dock workers have an increased risk of suffering a TBI. Emergency first responders and airline workers are also at increased risk of suffering a traumatic brain injury.

How are traumatic brain injuries categorized?
According to Brainline (“a national multimedia project), some injuries are focal and penetrating. Other TBIs are more diffuse causing damage at the point of impact and also the opposite side of the brain too. Brain damage can include bruises and contusions that cause swelling. “Rotation injuries also result in shearing and tearing of brain tissue.” TBIs are generally categorized as primary, secondary, or a combination of both.

Primary Injury. These are injuries which occur at the time of the accident, the traumatic event. Common primary brain injuries, according to Brainline, include:

  • Intracranial Hematomas. These are ruptured blood vessels “leading to the collection of blood in brain tissues or empty spaces.” Hematomas are categorized as:
    • Subdural Hematoma: A blood clot between the brain and the dura.
    • Subarachnoid Hemorrhage: Bleeding withing the layers of the dura, specifically under the aracnoid layer.
    • Intracerebral Hematoma: Bleeding within the brain tissue itself caused by the rupture of a blood vessel within the brain.
    • Intraventricular Hemorrhage: Bleeding into the ventricles of the brain.”
  • Skull Fractures. These are skull disruptions which can cause brain injury or which can increase the possibility of infection. Skull fractures are categorized as:
    • A linear skull fracture. This skull break is similar to a thin line crack. This type of fracture normally doesn’t require surgery.
    • A depressed skull fracture. This type of fracture may require a craniotomy (elevation of the skull) to “prevent increased pressure on the brain.”
    • A basilar skull fracture. This type of fracture can cause cerebral spinal fluid to leak.
  • Contusions/Coup-Countrecoup. This injury occurs when the brain tissue bruises. It can cause a “linear, anterior-posterior lesion at the point of impact. This types of injury is most common in vehicle accidents where the head accelerates and then decelerates quickly.
  • Diffuse Axonal Injury (DAI). This brain trauma is usually due to twisting and tearing of the connections between the brain cells. It’s normally due to rotational forces instead of a direct strike to the head.

 

Secondary Injury. Neurologists have become more attuned in recent years to secondary brain injuries that are due to “metabolic and physiologic changes “after the initial impact. Examples of secondary brain injuries include, according to Brainline:

  • Hypoxia and Hypotensions
  •  Ischemia
  • Cerebral Edema – resulting in increased intracranial pressure
  • Hydrocephalus
  • Second Impact Syndrome

TBIs are generally also categorized as one of the following:

  • ·Penetrating. These are due to such incidents as bullets or high-speed projectiles.
  • Closed. Here, the dura of the brain remains intact. They’re divided into mild, moderate, or sever. Most TBIs are closed.

The Effects and Symptoms of Traumatic Brain Injuries
Some TBIs may not show symptoms right away. It may take days, weeks, or months, for a victim to understand he/she has suffered a traumatic brain injury. In some cases, family members need to be the person to inform the workplace accident victim they need medical help. The sooner an injured worker who may have a TBI sees a physician, the better. Prompt medical treatment helps ensure the worker gets the best medical care possible. Prompt medical treatment also helps to establish the relationship between the workplace accident and the traumatic brain injury, which is essential if a claim is to be brought for TBI.

What are some of the signs and symptoms of a TBI?
The signs and symptoms of a TBI vary depending on the severity of the injury. In the worst cases, a victim may die. In the best cases, the victim recovers within a short time frame. In many cases, TBI victims exhibit some or most of the following symptoms, according to the Mayo Clinic:

  • Physical symptoms. These include:
    • Headaches
    • Fatigue
    • Vomiting
    • Loss of consciousness
    • Confusion
    • Speech difficulties
    • Difficulty sleeping or sleeping too much
    • Loss of balance
    • Vomiting
    • Nausea
    • Seizures
    • Numbness or weakness in the toes and fingers
    • Dilation of the pupils
  • Sensory symptoms. Symptoms include vision that is blurred, ear-ringing, changes in the ability to smell, and a bad taste in the mouth. Symptoms also include light or sound sensitivity.
  • Cognitive and mental symptoms. These symptoms include:
    • Mood changes and mood swings
    • Depression
    • Anxiety
    • Difficulty concentrating
    • Agitation or combativeness
    • Coma or other consciousness disorders

What arguments do employers make to try to reduce or deny a TBI claim?
Employers, their insurance carriers, and their defense lawyers may try to defeat or limit your TBI workers compensation claim by asserting the following arguments:

  • The worker failed to notify his/her employer or supervisor of the workplace accident within a timely period – typically, 30 days.
  • The worker failed to file the clam within the statute of limitations period –claims must be filed within two years of the date of the accident.
  • The employee didn’t seek out medical treatment quickly. As mentioned, delay is often justified in TBI accident cases because the signs and symptoms of a TBI may take a while to appear. Moreover, the injured worker may be tending to other severe injuries first and may write off symptoms to being under the influence of pain medication.
  • The worker didn’t lose consciousness. Many TBIs do not involve a loss of consciousness. Experienced North Carolina and Virginia workers’ compensation lawyers work with neurologists and other physicians to confirm the worker did indeed suffer a concussion or traumatic brain injury due to a workplace accident.
  • There are no imaging tests to confirm the TBI. Again, some TBIs do not reveal themselves on MRIs or CT scans. That does not mean an injury was not suffered.
  • The injury didn’t occur during workplace hours. Employer insurance companies will work overtime if they remotely suspect your TBI may be due to other causes. Often, they will seek all medical records prior to the workplace accident to show you had a pre-existing condition. Experienced work injury lawyers fight to limit medical requests to evidence that is directly relevant to your claim.

Insurance companies may also try to argue that your head didn’t strike an object. As any competent analysis of TBI injuries will show, many TBI injuries are due to violent rotating or quick acceleration/ deceleration of the skull – without any direct striking of an object.

What issues affect your workers’ compensation recovery in North Carolina or Virginia in a Traumatic Brain Injury Case?
There are many issues your lawyer needs to review with you and your physicians before considering a settlement or before an award is entered.

  • Medical care. In all cases where a worker suffers a TBI due to a workplace accident, the worker is entitled to competent medical care. TBI victims often need to treat with a broad range of healthcare providers including:
    • Hospitals
    • Neurosurgeons
    • Neurologists
    • Speech therapists
    • Physical therapists
    • Vocational and occupational therapists
    • Psychologists
    • Neuropsychologists or Neuropsychiatrist
    • Hearing and Vision Specialists
    • Balance and Coordination Specialists
  • Maximum medical improvement. People with a TBI shouldn’t consider settling their claim until they have reached maximum medical improvement (MMI). MMI is the point in the recovery where additional medical treatment is not expected to improve the worker’s health. TBI victims who reach MMI usually will need long-term medical care so they can function and so their condition doesn’t worsen. When considering a settlement, it’s critical to understand the full scope and range of likely medical treatments because once a settlement is made, there’s no do-over. Settlements are final.
  • Neuropsychological Testing. It is very important that any TBI victim who is suffering long-term symptoms be sent out for neuropsychological testing. This involves a battery of written and verbal testing that will help determine the level of cognitive impairment and target the specific types of impairment that exist so that a plan can be suggested to help the patient overcome or at least live as effectively as possible with their new mental limitations. This is also an essential component in helping to determine whether or not the TBI Victim can ever return to work. And as will be explained, this determination can be the difference between a relatively normally-valued claim and a high-value claim that involves a permanent and total injury.
  • Lost wages. Victims of a TBI who were injured at work are also entitled to temporary wage loss benefits until they reach MMI. These temporary benefits are generally 2/3rds  of the workers’ pre-injury wages usually subject to a limit of 500 weeks. Once the worker does reach MMI, an evaluation is made of the worker’s disability to determine if it is a partial disability (the worker can return to work at some level) or whether the injured worker is permanently disabled from all work as a result of his or her brain injury.
  • Permanent and Total Injuries. Should the TBI Victims’ doctor opine that the injured worker suffered a severe brain injury that renders the employee permanently unemployable in gainful employment, then that injured worker may be declared permanently and totally disabled and accordingly be entitled to LIFETIME COMPENSATION for his or her injuries.  Both Virginia and North Carolina have similar statutes with regard to this:

See Virginia Code 65.2-503 ( C ) (3) must be a “a severe brain injury that renders the employee permanently unemployable in gainful employment.”

See North Carolina General Statute 97-29 (d)(3) specifies the requirement of a showing of a severe brain or closed head injury as evidenced by certain severe and permanent symptoms but does not have the additional requirement that the employee be “permanently unemployable in gainful employment” like Virginia does:

a.     Sensory or motor disturbances

b.     Communications disturbances

c.      Complex integrated disturbances of cerebral function; or

d.     Neurological disorders

Notice that any one of the above-listed set of symptoms will suffice, as evidenced by the legislature’s use of the word “or” in c.

Additional considerations. Depending on the severity of the TBI, some workers may be able to return to work if they can work with certain restrictions. Restrictions can include the ability to take more breaks and to perform less difficult tasks. Some workers may be able to obtain vocational counseling for new jobs. Many workers who suffer a traumatic brain injury also suffered other types of physical harm such as broken bones and damaged muscles and ligaments. These injuries need to be evaluated too to ensure the worker doesn’t’ return to work too soon or doesn’t attempt to settle his/her case too soon; however, notice again, that in North Carolina, an injured worker who has severe symptoms may elect to come under Permanent and Total disability, even though he or she may have some remaining work capacity.

In Virginia, this would be more difficult, as the injured worker must be able to show total unemployability.

 

Initially, any injured worker with a severe TBI should seek to get under an Award in Virginia or make sure his or her claim is Accepted—usually via a Form 60 –in North Carolina. This is the first step in making sure:

  • The injured worker is receiving ongoing compensation that will likely not be cut off for release to light duty employment.
  • Any and all ongoing medical bills are paid for. Treatment for severe TBI can be quite expensive.

Potential Settlement of a Workers Comp Brain Injury Case.
Once the worker’s disability level is determined and he or she has reached Maximum Medical Improvement, then it is possible a settlement can be entered into that would be based on:

  • Future compensation based either on the remainder of 500 weeks or Lifetime Compensation if the TBI victim is permanently and totally disabled.
  • Future Medical bills related to the claim;
  • Payment of any outstanding bills
  • Consideration of the need for future Attendant Care or Long-Term care, particularly in North Carolina. In Virginia, only skilled care is compensable, while North Carolina allows payment for nonskilled care as well such as assistance with cooking, cleaning, dressing, etc.
  • Consideration of Medicare’s interests via a Medicare Set-Aside (MSA) report,  especially if the injured worker has applied for SSDI or is over age 65.
  • In some circumstances, it may be prudent to invest in a Life Care Planner, to obtain a report, and have the main treating physician review the report and provide his or her approval of same. This can provide valuable fodder at any mediation of the claim and also assist with future medical disputes if the claim remains unsettled.
  • See additional important details in a previous article in relation to resolving the claim of a permanently injured worker.

North Carolina and Virginia workers’ compensation attorney Joe Miller Esq. guides injured workers through each stage of the litigation process. We’ll help you see the correct doctors. We’ll explain the arguments insurance carriers use to try to defeat or limit your claim. Attorney Miller works to obtain just lump-sum settlements in TBI cases. For help with all parts of your TBI work injury claim, call North Carolina and Virginia lawyer Joe Miller, Esq., at 888-667-8295. or complete my online contact form to schedule an appointment with a premier work injury attorney.