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Brain Injury Claims: Understanding the Process

August 1, 2020

A traumatic brain injury lawyer can help you navigate the legal issues that come up in brain injury claims. Depending on the mechanism of injury for your particular brain injury, you may be filing either a personal injury case or a workers’ compensation case. Each case has a different type of legal process.

I. Personal Injury Civil Court Cases Vs. Workers’ Compensation Claim Cases

There are some substantial differences between personal injury cases and workers’ compensation claims as it relates to brain injuries. The workers’ compensation system in California is a no-fault system. This means that for a workers’ compensation case, you do not have to prove fault. 

For example, in a personal injury case, in order to be successful, you will need to show (at minimum) that the other party was negligent in some way and that it caused your brain injury. In a workers’ compensation case, you do not have to prove that your employer was at fault for your injury.

A. Personal Injury Cases

In personal injury cases, you do not receive money for anything until your case has been proven, or you have reached a settlement. This means that you may incur a significant amount of medical bills along the way, and they will not be paid until your case has concluded.

Since this is not exactly convenient for your medical care providers, in most cases, medical treatment will be provided on a lien basis. Your doctors and medical providers will have a lien on your case, and then when the case concludes, their liens will be paid as part of the settlement as agreed to by your personal injury lawyer. This does not necessarily mean that your settlement will be less money than it would otherwise since your lawyer can negotiate for the value of the medical bills to be included in the settlement.

B. Workers’ Compensation Cases

If a workers’ compensation case is accepted, the insurance carrier will approve or deny medical claims as they go. This can mean that your earlier treatment may be approved, authorized, and paid for, but that the insurance carrier decided not to authorize any further treatment. If this happens to you, your attorney can take the matter to court.

In addition to the payment of medical bills, workers’ compensation benefits also include temporary and permanent disability payments. While you are in treatment and your condition is improving, you will receive temporary total disability payments if you are unable to work due to your injuries. 

If your injuries are deemed permanent and total, you may be eligible to receive permanent disability payments for the rest of your life. If you are not found to be totally permanently disabled, you will receive permanent partial disability payments for a fixed number of weeks. The amount of money you will receive is typically two-thirds of your average weekly wage. This amount is subject to minimums and maximums that are adjusted yearly.

If necessary, future medical care will be included in your settlement as negotiated by your brain injuries attorney. The compensation for medical care is not deducted from your settlement amount. The amount you will receive for future medical care is determined by the severity of your injuries and what your doctors recommend.

II. The Workers’ Compensation Case Process

The first step in initiating your workers’ compensation case in California is to file for a case number with the California Division of Workers’ Compensation. You will need to fill out the employee portion of a DWC-1 claim form. 

On the form, you will include the location at which your brain injury occurred, the date and time, and injury details, including which body parts were injured. Your employer will fill out the remainder of the form. At this stage, it is helpful to hire a workers’ compensation attorney to help you with this process.

A. Acceptance or Denial of the Claim

The next phase in the process is the acceptance or denial of your claim. The insurance carrier for your employer has 90 days to either accept or deny your claim. Typically, you will receive a response at the earlier end of that time frame.

B. Disputed Claims

In order to have a valid workers’ compensation case, you will need to show that your brain injury arose out of and occurred in the course of your employment. When claims are denied, it is often due to a dispute that the accident arose out of the employment or occurred in the course of the employment. For example, if the employer has reason to believe the claimant was intoxicated at the time of the injury or did something on purpose to hurt themselves and commit fraud, the claim may be denied. 

Additionally, a claim will be denied if the injured person got hurt on the way to work or on their way home under normal circumstances. This is because you are not in the course of your employment yet as you drive to work, and you are no longer in the course of your employment as you drive home from work. 

However, if you were asked to do a task for your employer on your way home, for example—and you were injured while completing that task, generally speaking, you would be in the course of your employment in that instance, and your case should be accepted.

III. Duration of Traumatic Brain Injury Claims

Traumatic brain injury claims tend to be at the higher end of the spectrum when it comes to case duration from start to finish. The majority of these cases take around 18 months to two years to conclude, and many take even longer. 

The reason for the long duration of these cases is because traumatic brain injuries can take some time to discover and develop. If you rush to settle your case, you may settle it before the full extent of your brain injury is discovered, and you may then lose out on compensation for medical bills that you will need down the road.

In minor traumatic brain injury claims, it is possible that the cases may conclude sooner. The duration of the case depends on many factors. It is better to have your case take longer to conclude and make sure that you get compensated for the full extent of your injuries—including future medical treatment—than it is to rush through it and settle for less than you deserve.

A. When Treatment is Completed

In many traumatic brain injury cases, treatment may be ongoing for the rest of your life to manage pain and control symptoms. However, this does not mean that you cannot settle your case.

Traumatic brain injury cases can be settled or go to trial when your doctor determines that your condition is stabilized. This is referred to as maximum medical improvement, or permanent and stationary. At this time, you have recovered to the extent that your doctor feels you are able to, though you may need some ongoing maintenance care.

B. Assessing Long-Term Medical Needs

Once your condition has stabilized, your treating physicians will determine what long-term medical needs you will have (if any). Your brain injury attorney will work with your treating physicians and any medical experts to put a dollar amount on the future medical bills that you are likely to incur. This amount will then be negotiated in your settlement, in addition to other compensation.

In workers’ compensation cases, the permanent nature of your disability due to your traumatic brain injury will be assessed in a percentage. This disability percentage, coupled with your average weekly wage (subject to minimums and maximums), will be used to calculate how much you are due in permanent disability benefits.

IV. Personal Injury Case Value

The case value of personal injury cases is calculated differently than it is in workers’ compensation cases. In personal injury cases, you are awarded compensation for the damages you suffered due to your brain injury. There are two main categories of damages—economic and non-economic damages. Under some circumstances, you may also be able to fight for punitive damages.

A. Economic Damages

Economic damages refer to tangible losses that can be assigned a monetary value. Some examples of economic damages you can ask for include:

  • Medical bills and costs (both past and future expected medical costs)
  • Lost wages (both past and future expected losses)

B. Non-Economic Damages

Non-economic damages are losses that cannot be easily assigned a monetary value. Examples of non-economic damages you may be able to ask for in your case include:

  • Pain and suffering
  • Loss of consortium (loss of intimacy with your spouse caused by your injuries)
  • Emotional distress

C. Punitive Damages

Punitive damages are damages that are awarded in addition to the above compensatory damages under certain circumstances. These damages exist to punish the at-fault party. 

Due to the nature of these damages, they are only awarded in cases where there is a willful disregard for the safety and health of others. In cases where punitive damages are an option, there may be a substantial amount of money at stake, which can greatly increase your overall settlement or award.

V. Workers’ Compensation—Permanent Disability

If you have a severe traumatic brain injury caused by a work accident, and you cannot return to work, your best-case scenario compensation-wise is to be declared 100% permanently and totally disabled. At this point in time, your treating physician will write a report called a permanent and stationary report. This report will explain in detail your permanent work restrictions.

A. Permanent Total Disability

If your doctor has determined that you are 100% permanently disabled due to your traumatic brain injury, you are believed to be unable to return to work or compete in the job market. Traumatic brain injuries are some of the more common injuries that can lead to permanent total disability due to the serious and permanent nature of this type of injury.

While many people with traumatic brain injuries do want to go back to work, it can be difficult. Even if they are able to find suitable employment, they may be unable to perform the job duties that are expected of them.

It is often difficult for a person with a permanent brain injury to have a complete understanding of what has changed since their injury. Close family members and friends can give a unique insight into how the traumatic brain injury has impacted the injured person’s day-to-day life and how it has affected their ability to perform their typical job duties. 

It can also be hard for someone to fully understand how their traumatic brain injury will affect them in the future. For these reasons, it is important for people who have suffered traumatic brain injuries to have compassionate brain injuries lawyers who can explain the long-term implications of their brain injury.

B. Workers’ Compensation Benefits for Permanent Total Disabilities

If an injured worker is found to be 100% permanently and totally disabled due to their brain injuries, they are entitled to ongoing compensation for the rest of their life. This benefit is calculated at the rate of two-thirds of their previous average weekly wage, subject to California state maximum and minimums.

If you want to settle your case, it does not mean that you have to forgo the weekly benefit payments. Rather, your attorney will negotiate a settlement for you that includes this compensation. The average life expectancy of someone your age and other factors will be used to calculate what your benefits would be over your lifetime, and this will be included in your settlement.

C. Future Medical Care

With workers’ compensation cases, it is ideal to have as much medical care that is needed to be authorized and paid for before the case has concluded. Toward the end of active treatment for your traumatic brain injury, your doctor should determine the level of care that you will need in the long term. 

D. Long-Term Care

The goal of long-term care and treatment of traumatic brain injury patients is to manage symptoms and the limitations the patient is experiencing, as well as help the patient work toward living as independently as possible. There are a few different long-term medical care options to consider.

Some patients may do best in an institutional care setting, while others may be more comfortable receiving 24/7 in-home care. The patient and their medical team will need to take the severity of the symptoms and level of independence they have when making this decision. An experienced brain injury lawyer will work to maximize the amount of value that the insurance company can offer to close out future medical care and get you the most money in the process.

VI. Beginning the Process of An Accepted Workers’ Compensation Claim

After your traumatic brain injury case has been accepted, the next stage involves selecting your primary care physician. If you predesignated your personal doctor or medical group before your injury, you could see your usual doctor or medical group. If your employer has a medical provider network, you will need to see one of the doctors in the network.

A. What Type of Doctor to Choose?

It is important to choose a doctor with a specialty associated with your injuries. This will ensure that you not only get care specific to your injury, but the doctor’s opinions in your court case will often be looked at more credibly. You may want to consider a neurosurgeon or an orthopedic specialist, depending on your injuries.

B. After You Have Chosen Your Primary Care Physician

After you have made the decision as to who your primary care physician should be, it is time to schedule your first visit. Your primary care physician is considered the “quarter-back” of your treatment team—you will see that physician at least once every four to six weeks throughout active treatment.

C. Referrals to Other Specialists

Throughout the course of your medical care, it is common to be referred to other doctors for more specialized medical opinions. These other doctors may treat you for injuries to other body parts discovered in the treatment process or may provide second opinions. Some examples of other specialists you may encounter during the course of your treatment include:

  • Neurologist
  • Neuro-optometrist or a neuro-ophthalmologist
  • Neurosurgeon
  • Orthopedic surgeon
  • Pain management physicians
  • Neuropsychologist
  • Psychiatrist
  • Otolaryngologist (ear, nose, and throat specialist)

D. Your Primary Care Physician’s Role Throughout Your Treatment

Your primary care physician is the main doctor responsible for your care. You will continue to see your primary care physician on a regular basis during the course of your treatment. He or she will receive reports from other specialists and members of your treatment team in order to keep up to date with your symptoms and conditions.

Your primary care physician will also recommend diagnostic testing and treatment themselves. You will continue to receive medical care until the physicians feel that your condition has stabilized for each part of the body or specialty area. In a traumatic brain injury case, the main concern is what the neurologist is saying about your brain’s condition.

VII. The Next Stage of Your Workers’ Compensation Case

After the active stage of your treatment has concluded, and your physician has determined that your injury has become permanent and stationary, it is time to look forward to the future. Depending on how your case has gone, you may use your treating physician’s opinions to determine the value of future medical care.

Either side also has the option to get a second opinion. The process of obtaining a second opinion may extend the duration of the case—however, each side has the right to object to physician opinions and pursue their own.

A. The Process of Obtaining a Second Opinion

A qualified medical evaluator (QME) is a doctor who performs an evaluation when there is a medical issue in dispute. If your attorney and the claims administrator agree to a doctor to give another opinion on the medical issues in your case, that doctor is called an AME. The AME may be a QME with the specified qualifications—but is not required to be in this scenario where the parties have agreed on a physician.

1. Panel QME

If you do not have an attorney or there is no agreement, then a panel QME will be chosen to resolve the medical disputes in your case. A panel QME physician is one that is chosen from a list of state-certified doctors. The list is issued by the DWC Medical Unit and is generated randomly.

The party that fills out the form to request the panel QME is the one that can choose the specialty of the doctors on the panel. In traumatic brain injury cases where more than one specialty may be involved, it is important to carefully consider what specialty to choose, and also to be the one to fill out the form and make the request.

2. Scheduling the Evaluation

In cases where there is an agreement and an AME is used, the scheduling process and timelines are more lenient. When a panel QME is chosen, there is a deadline of sixty days to provide the appointment. However, if the parties agree, this can be extended to ninety days.

3. How the Evaluation May Impact Your Case

Whether you use an AME or a panel QME in your case, that physician will ultimately issue a medical opinion after the evaluation has concluded. The AME or PQME will generate a report, which is then used as evidence of the level of permanent disability that exists, as well as the level of future care that is required.

B. Workers’ Compensation Appeals Board

The Workers’ Compensation Appeals Board resolves issues between the parties. In some cases, there are many disputes. These disputes require the injured party to constantly have to file for hearings due to the insurance carrier’s refusal to authorize medical procedures and treatment. 

Some of these cases settle, while others require hearings before the court on other issues, such as permanency of the disability. There are also cases that do not become heavily disputed and settle without having to go before the Appeals Board.

VIII. Going to Trial in Your Workers’ Compensation Case

If the disputed issues in your case cannot be resolved, you may need to go to trial for your traumatic brain injury workers’ compensation case. In particular, if both sides do not agree on the level of disability, then the case will be unable to settle, and it will need to proceed to trial.

Your workers compensation attorney will use the medical evidence in your favor, along with other favorable evidence, to convince the judge that your level of disability is supported by the evidence and request a ruling in your favor.

A. Settlements vs. Awards

A settlement is an agreement reached between the parties, while an award is the judge’s ruling. With a settlement, there is a compromise between the parties, and the parties sign a contract memorializing those agreements and their terms. In a settlement, an agreement is reached for a lump sum payment meant to compensate for permanent disability and any future medical care.

With an award, the judge issues a ruling based on the evidence. The award at trial is based on permanent disability. Depending on the case, future medical may be left open.

IX. Trial vs. Settlement

While every case is different and has its own unique set of facts, your case is generally more likely to settle than it is to go all the way to trial. It is important to keep in mind that the court only has so much power to establish the level of permanent disability for the injured person. 

The court does not have the authority to determine the value of future medical care on its own. You should also keep in mind that the court cannot force the insurance company to close out the case and settle it. 

Your employer’s insurance carrier has the right to refuse a compromise and force you to go to trial to prove your case. As the injured party seeking benefits, you have the burden of proof in the case.

A. Open Medical Care

It is possible that the insurance company could choose to keep medical care open indefinitely. This means that an injured worker could be in the system and receiving medical care under workers’ compensation for the rest of their lives.

The concept of open medical care is one reason that it may be beneficial for an injured worker to close out their case. If the insurance company has incurred substantial costs for medical care along the way, they may be more likely to want to close out the case and buy out future medical care.

B. Settlement Proposals

In many cases, there may not be a final settlement agreement until there has been some back and forth between the parties with settlement proposals and counter offers. It is always your choice whether or not to accept a settlement offer; however, your attorney is there to help you evaluate each offer.

C. Structured Settlement

A structured settlement is one that is paid out gradually to the injured person over time, rather than being paid out all at once in a lump sum. A structured settlement is essentially an annuity contract from a life insurance company. 

The workers’ compensation insurance carrier will typically purchase the contract on behalf of the injured worker pursuant to a settlement agreement. The injured worker will then receive payments on a specific schedule (such as monthly) issued by the life insurance company.

A structured settlement is a good choice under many circumstances, as it parses out the payments over a long period of time rather than all at once. This can be helpful to someone who is worried that they may spend too much of their settlement too fast, or someone who just wants the comfort of knowing they have a steady stream of income for the future.

D. Different Types of Annuities

There are three main types of annuities to choose from. The first option is for “life only.” This means that the annuity will be paid out only for the lifetime of the injured worker. 

Another option is payments for a “period certain.” This option means that payments will be issued for a designated period of time. Once that time period has concluded, the payments will end. These payments are guaranteed. If the injured worker dies within that time period, then the payments will continue to be paid out to a chosen beneficiary.

The third option is for “life for a period certain.” This means that the payments are guaranteed for the duration of the injured worker’s life, and for a guaranteed period—even if the injured worker dies. This means that if the injured worker dies before the guaranteed period is up, their chosen beneficiary will receive the payments until the guaranteed period has concluded.

X. Traumatic Brain Injury Lawyers at The Odjaghian Law Group

The brain injury attorneys at The Odjaghian Law Group have successfully handled traumatic brain injury claims in the United States for many years. We have been so successful in winning high settlements and awards for our clients due to our unique and personal approach to every case. We know what it takes to see traumatic brain injury claims through from start to finish. Contact our office today to learn more about how we can help you pursue the compensation you deserve for your traumatic brain injury.

Disclaimer: Each case is different, and the Odjaghian Law Group cannot guarantee a positive legal outcome. Additionally, the above information is not meant to be construed as legal advice, nor does it create an attorney/client relationship between the reader and the Odjaghian Law Group.

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