Brain Injury Claims: Understanding the Process

A traumatic brain injury lawyer can help you navigate the legal issues that arise in brain injury claims . Depending on the mechanism of injury for your particular brain injury, you may be filing 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 Claims Cases

There are some substantial differences between personal injury cases and workers’ compensation claims when it comes 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, to be successful, you will need to prove (at a minimum) that the other party was negligent in some way and caused your brain injury. In a workers’ compensation case, you do not need 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 down the road and they will not be paid until your case has concluded.

Since this isn’t exactly convenient for your medical care providers, in most cases, medical treatment will be provided in the form of a lien. Your doctors and medical providers will have a lien on your case, and then when the case concludes, their liens will be paid off as part of the settlement agreed to by your personal injury attorney . This doesn’t necessarily mean that your settlement will be less monetary than it would otherwise be, as your attorney can negotiate 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 company will approve or deny medical claims on the fly. This may mean that your previous treatment may be approved, authorized, and paid for, but the insurance company decided not to authorize any further treatment. If this happens to you, your attorney can take the matter to court.

In addition to payment for medical bills, workers’ compensation benefits also include payments for temporary and permanent disability. While you are undergoing treatment and your condition improves, 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 determined to be permanently and totally disabled, you will receive permanent partial disability payments for a set 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 annually.

If necessary, future medical care will be included in your settlement negotiated by your brain injury attorney. 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 process of the workers' compensation case

The first step in starting your California workers’ compensation case is to request a case number from the California Division of Workers’ Compensation. You will need to complete the employee portion of a DWC-1 claim form.

On the form, you will include the location where the brain injury occurred, the date and time, and details of the injury, including what body parts were injured. Your employer will complete the rest 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 of the process is the acceptance or denial of your claim. Your employer’s insurance company has 90 days to accept or deny your claim. You will usually receive a response at the end of that time period.

B. Contested Claims

To have a valid workers’ compensation case, you will need to prove that your brain injury arose and occurred in the course of your employment. When claims are denied, it is often due to a dispute that the accident occurred outside of employment or occurred in the course of employment. For example, if the employer has reason to believe that 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 was hurt on the way to work or on the way home under normal circumstances. This is because they are not yet in the course of their employment while driving to work, and they are no longer in the course of their employment while driving 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 whilst completing that task, generally speaking, it would be in the course of your employment in that case, and your case should be accepted.

III. Duration of Traumatic Brain Injury Claims

Traumatic brain injury claims tend to be on the higher end of the spectrum when it comes to the length of the case from start to finish. Most of these cases take between 18 months and two years to conclude, and many take even longer.

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

For minor traumatic brain injury claims, cases may be able to conclude sooner. The length of the case depends on many factors. It is better to let your case take longer to conclude and ensure that you receive compensation for the full extent of your injuries, including future medical treatment, than to rush and settle for less than you deserve.

A. When the treatment is completed

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

Traumatic brain injury cases may settle or go to trial when your doctor determines that your condition has stabilized. This is known as maximum medical improvement or permanent and stationary. At this point, you have recovered to the extent your doctor believes you can, although you may need some ongoing maintenance care.

B. Assessment of long-term medical needs

Once your condition has stabilized, your treating doctors will determine what long-term medical needs you will have (if any). Your brain injury attorney will work with your treating doctors and any medical experts to put a dollar amount on the future medical bills you are likely to incur. This amount will then be negotiated into 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 on a percentage basis. This percentage of disability, along with your average weekly wage (subject to minimums and maximums), will be used to calculate how much you are entitled to in permanent disability benefits.

IV. Personal Injury Case Value

The case value for personal injury cases is calculated differently than it is for 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. In 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 may be able to seek include:

Medical bills and costs (anticipated medical costs both past and future)
Lost wages (expected past and future 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 seek 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 awarded in addition to the compensatory damages listed above 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 deliberate 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 settlement or overall award.

V. Workers' Compensation: Permanent Disability

If you have a severe traumatic brain injury caused by a workplace accident and are unable to return to work, your best-case compensation is to be declared 100% permanently and totally disabled. At this 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, it is believed that you will not be able to return to work or compete in the job market. Traumatic brain injuries are some of the most common injuries that can lead to permanent total disability due to the severe and permanent nature of this type of injury.

While many people with traumatic brain injuries want to return to work, it can be difficult. Even if they are able to find suitable employment, they may not be able to perform the job duties 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. Family members and close friends can provide unique insight into how the traumatic brain injury has affected the injured person’s daily life and how it has affected their ability to perform their typical job duties.

It can also be difficult 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 injury attorneys 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 his or her brain injuries, he or she is entitled to continued compensation for the remainder of his or her life. This benefit is calculated at the rate of two-thirds of his or her previous average weekly wage, subject to California state maximums and minimums.

If you want to settle your case, it doesn’t mean you have to give up 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 all necessary medical care 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 you will need long-term.

D. Long-term care

The goal of long-term care and treatment for patients with traumatic brain injuries is to manage the symptoms and limitations the patient experiences, 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 better in an institutional care setting, while others may be more comfortable receiving 24/7 home care. The patient and their medical team will need to take into consideration the severity of the symptoms and the level of independence they have when making this decision. An experienced brain injury attorney will work to maximize the amount of value the insurance company can offer to close out future medical care and get 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 previously designated your personal physician or medical group before your injury, you would be able to see your regular physician or medical group. If your employer has a network of medical providers, you will need to see one of the doctors in the network.

A. What type of doctor should I choose?

It is important to choose a doctor with a specialty associated with your injuries. This will ensure that you not only receive care specific to your injury, but the doctor’s opinions in your court case will often be considered 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

Once you’ve made the decision about who your primary care doctor should be, it’s time to schedule your first visit. Your primary care doctor is considered the “quarterback” of your treatment team; you’ll see that doctor at least once every four to six weeks during active treatment.

C. References to other specialists

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

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

D. The role of your primary care physician throughout your treatment

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

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

VII. The Next Stage of Your Workers’ Compensation Case

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

Either party also has the option to obtain a second opinion. The process to obtain a second opinion may extend the length of the case; however, each party has the right to object to the doctors’ 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 have a doctor give another opinion on the medical issues in your case, that doctor is called an AME. The AME can be a QME with the specified qualifications, but does not have to be in this scenario where the parties have agreed on a doctor.

1. QME Panel

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

The party who fills out the form to apply for the QME panel is the one who gets to 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 which specialty to choose, as well as being the one who fills out the form and makes the request.

2. Evaluation scheduling

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

3. How the evaluation can affect your case

Whether you use an AME or a panel QME in your case, that doctor will ultimately render 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 parties. In some cases, there are many disputes. These disputes require the injured party to constantly file for hearings due to the insurance company’s refusal to authorize medical procedures and treatments.

Some of these cases are settled, while others require court hearings on other issues, such as the permanence of disability. There are also cases that are not highly contested and are settled without having to go to 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 parties disagree on the level of disability, the case cannot be resolved and it will be necessary 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 judgment in your favor.

A. Agreements versus awards

A settlement is an agreement reached between the parties, while an award is a decision by the judge. With a settlement, there is a commitment 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 intended to compensate for permanent disability and any future medical care.

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

IX. Trial versus settlement

While every case is different and has its own unique set of facts, your case is more likely to end in a settlement than a trial. It is important to note 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 the case and settle it.

Your employer’s insurance company has the right to refuse a settlement 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 health care

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

The concept of open medical care is one reason why it can be beneficial for an injured worker to close his or her case. If the insurance company has incurred substantial costs for medical care along the way, it is more likely to want to close the case and purchase future medical care.

B. Liquidation proposals

In many cases, there may not be a final settlement agreement until there is an exchange between the parties with settlement proposals and counteroffers. 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 gradually to the injured person over time, rather than all at once in a lump sum. A structured settlement is essentially an annuity contract from a life insurance company.

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

A structured settlement is a good option in many circumstances, as it looks at payments over a long period of time rather than all at once. This can be helpful for someone who is worried about spending too much of their settlement too quickly, 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 “lifetime only.” This means that the annuity will be paid only during the injured worker’s lifetime.

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

The third option is for “life for a certain period.” This means that 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 ends, the chosen beneficiary will receive payments until the guaranteed period ends.

X. Traumatic Brain Injury Lawyers at The Odjaghian Law Group

The brain injury attorneys at The Odjaghian Law Group have been successfully handling brain injury claims across the United States for many years. We have been so successful in winning high settlements and awards for our clients because of our unique and personal approach to each 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 get the compensation you deserve for your traumatic brain injury.

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