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Workers’ Compensation and TBI

Asheville Traumatic Brain Injury Attorney

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Traumatic Brain Injuries Caused by Work Accidents

We have nearly 25 years’ experience advancing workers’ compensation claims on behalf of traumatic brain injury victims.  Many of our clients sustained head trauma in car accidents or significant falls. Fall injuries frequently occur in work environments, especially in industrial and construction site settings.

Please see Workers’ Compensation FAQ (frequently asked questions) for general information regarding the workers’ compensation claim process, including an important topic, A Practical Framework: Proving Disability.

Workers’ compensation claims involving traumatic brain injuries often pose difficult questions related to key issues: the initial brain injury diagnosis and relative severity (mild, moderate or severe); the specific injury mechanism; the patient’s resultant physical, cognitive, behavioral, and mental impairments; and the nature and extent of the practical effects of the patient’s symptoms and disabilities.

Some of the most challenging cases involve traumatic brain injuries which either may have been undiagnosed or misdiagnosed due to issues surrounding the actual cause or the severity of residual symptoms, both of which relate to proving disability. Accordingly, we work diligently to investigate and document the relevant facts surrounding the traumatic accident, the applicable medicine, and the practical effects of the client’s symptoms on their rehabilitation, their relationships, and overall life quality. We often retain professionals in various fields to evaluate the relevant evidence and render opinions regarding the key medical, rehabilitation, and vocational (return to work) issues, with the goal of supporting the client’s right to proper compensation.

Unfortunately, many victims of severe traumatic brain injuries require skilled nursing care either in a rehabilitation, long-term care facility or, if possible, in their home. However, even patients suffering mild to moderate traumatic brain injuries can require non-nursing or limited-skill assistance on various levels.

A frequent medicolegal issue, especially in the realm of workers’ compensation, is whether or not the traumatic brain injury patient requires what are referred to as safety supervision or attendant care due to their cognitive, behavioral, or emotional impairments.

Specifically, some traumatic brain injury patients lose the necessary judgment to engage safely in many activities of daily living (e.g., driving, cooking, using power-tools, appliances, etc.).   Safety supervision spans many levels and involves varying periods during which the patient cannot be left unattended or otherwise requires supervision, but such may not necessarily involve practical assistance with physical daily activities. In essence, the supervision primarily is necessary for potential intervention and verbal guidance. The supervision typically does not require skilled nursing knowledge, and often is provided by a spouse, other family member, or friend, but it also can be provided by a certified nursing assistant (CNA), a companion care provider, or similar professional.

Attendant care is a broader term that can encompass safety supervision but normally considers more physical assistance (e.g., help with medications, cooking, bathing, shopping, etc.). However, the assistance typically is less than skilled nursing care, so it often may also be provided by a spouse, family member, or friend.  A key issue in workers’ compensation claims considers whether or not the injured worker’s employer should be responsible for paying compensation to the spouse, family member or friend who is providing the safety supervision or attendant care services.

 

  1. Traumatic Brain Injuries: Compensation for Safety Supervision and Attendant Care Services 

    If an injured worker’s on-the-job accident is admitted to be compensable by the employer or otherwise deemed compensable by the North Carolina Industrial Commission, then normally the employer, its workers’ compensation claims administrator, or its insurance carrier will ensure that a traumatic brain injury victim will be provided all reasonable and necessary medical care, including skilled nursing care, safety supervision services, or attendant care services. However, on occasion the need for such services gets overlooked or ignored, due to many factors.In some instances, a spouse, family member or friend will provide the necessary services without hesitation out of love and concern but often with significant sacrifice and without any compensation. In certain cases, if the injured worker and the spouse, family member or friend providing such services do not pursue compensation from the employer or their representative, then compensation for such services tends not to be paid voluntarily.Workers’ compensation benefits for safety supervision or attendant care services may be approved and ordered by the North Carolina Industrial Commission under proper circumstances. Based on applicable statutes and appellate case law, such compensation primarily requires having a qualified physician’s order stating that such services are medically reasonable and necessary. Furthermore, in addition, when a spouse, family member, or friend providing such services expects compensation for such, then proper notice of such claims in a timely manner to the employer or its workers’ compensation representative is required.Technically speaking, under the Workers’ Compensation Act, the person providing such safety supervision or attendant care services would be considered a medical provider to whom compensation for the reasonable charges to render such services could be paid pursuant to the broad benefit category referred to as medical compensation.We have considerable experience and knowledge regarding the proper manner and methods to evaluate the reasonable necessity for safety supervision and attendant care services on behalf of traumatic brain injury victims, to medically document such necessity, and to advance claims for such compensation before the North Carolina Industrial Commission.In particular, we communicate with treating physicians to obtain and coordinate any and all necessary neuropsychological/neuropsychiatric testing, imaging studies, and other medical evaluations. We also communicate with medical professionals to obtain clear opinions as to whether or not the patient requires safety supervision or attendant care services, and, if so, we obtain qualified medical orders confirming such needs.  Furthermore, we work with various professionals who perform in-home assessments to determine the practical needs of traumatic brain injury clients, including any reasonable and necessary safety supervision and attendant care, which the patient’s treating physicians rely upon in forming their professional opinions.

  2. Wage Compensation Period for Permanent and Total Disability due to a Severe Traumatic Brain Injury

    Once again, please see our website article, A Practical Framework: Proving Disability, for a discussion on the evidence required to prove disability which may entitle an injured worker to wage indemnity compensation (i.e., compensation to replace lost wages or earnings after a compensable work accident. Most important, injured workers with traumatic brain injuries are afforded a special consideration regarding how long they may be entitled to wage indemnity benefits.Specifically, if it is determined based on competent, expert medical testimony that an employee’s traumatic brain injury is classified as severe and such severity involves evidence either of severe and permanent sensory or motor disturbances; communication disturbances, complex integrated disturbances of cerebral function; or neurological disorders, then the employee may be deemed permanent and totally disabled and entitled to wage indemnity benefits during the remainder of his or her lifetime, as opposed to such benefits being limited to only a total of 500 weeks during disability. On occasion, for example, after the medical professional has reviewed all relevant information regarding the nature and extent of the victim’s brain injury, an initial diagnosis of a moderate brain injury may change to severe. For a younger injured worker, the difference in available wage indemnity compensation could prove significant.

  3. Evaluating Medical and Rehabilitation Care for Victims of Traumatic Brain Injuries

    We work with numerous medical, rehabilitation, vocational, long-term care, and mental healthcare professionals to properly determine the care and services reasonably required to help our traumatic brain injury clients. Normally, appropriate care is ordered by the trauma physicians and initial rehabilitation care specialists. However, occasionally, specific tests, evaluations, or treatments either are not ordered due to various circumstances, or if ordered the patient does not have the resources to obtain such.   Consequently, we help the client seek potentially available funding sources, including workers’ compensation benefits if the traumatic brain injury is work-related.Most important, we frequently retain the services of certified nurse life care planners to develop documentation of the client’s long-term medical and rehabilitation care needs. Such care planning especially is required to determine proper funding pursuant to a potential settlement of the client’s claims.

 

Next: Seeking Compensation for Traumatic Brain Injury Victims through Civil Liability Due to Negligence
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