4-1-1 on Comp: Traumatic Brain Injuries

Bruce Burk

Sarasota, FL (WorkersCompensation.com) – Traumatic brain injuries or TBIs are dealt with regularly in the workers’ compensation system. TBIs typically occur through trauma and can cause the injured worker to have both physical and psychological conditions.

A TBI can carry with it symptoms including headaches, nausea, fatigue, slurred speech, difficulty sleeping, and dizziness. TBIs can also cause symptoms of depression, memory loss, loss of social skills, and difficulty with concentration.

In workers’ compensation, psychiatrists and psychologists use the DSM-V, which lists the diagnostic criteria for mental disorders.

For example, to be categorized as a major or mild TBI, there must be evidence of impact to the head, or rapid movement or displacement of the brain within the skull and involve one the of the following: loss of consciousness, post traumatic amnesia, disorientation or confusion, or evidence within neuroimaging.

Psychologists or psychiatrists who are evaluating a patient with a TBI use a variety of tests to determine their cognitive function. They use tests to measure their memory, language abilities, learning ability, social skills, and ability to perform basic tasks of daily living.

In severe cases of TBI, an injured worker may become permanently and totally disabled depending on the extent of their non-exertional limitations and restrictions. For example, injured workers who have impaired social functions and/or fear of social situations may not be able to work in jobs that deal with the public. A vocational evaluation in addition to the reports from the psychologists or psychiatrists can assist in making this determination.

Employer/carrier/servicing agents should handle TBI cases with care and monitor the claims for any referrals to psychiatric treatment. Not every closed head injury or concussion is a TBI but diagnostic testing may be necessary to rule in/rule out other conditions.

An issue that arises often in TBI cases is the claimant’s competence. Depositions taken of the claimant need to clearly establish whether the claimant understands the proceedings and that he is capable of telling the truth. If settlement is possible, a guardian may need to be appointed for the claimant if they are incapable of protecting their own interests and understanding the rights they are giving away by settling their case.

A recent TBI case caught attention when it resulted in the claimant’s arrest. Mario Seguro-Suarez sustained a TBI when he fell onto a concrete floor at his workplace. His case was originally accepted as compensable.

However, the E/C/SA tried for many years to cut off the claimant’s benefits and fought multiple court battles at the trial and appellate levels to do so. The E/C/SA believed that the claimant was faking his symptoms.

The E/C/SA then hired a private investigation company who videotaped the claimant over several weeks. Unfortunately, the investigator then put misleading information in a report that was given to police who then arrested the claimant. The claimant was later charged for workers’ compensation fraud. However, those charges were later thrown out and the claimant is now suing the carrier and other entities for malicious prosecution.

As is not uncommon with TBIs, the claimant has a guardian who is representing his interests because it was determined that he cannot represent himself. The judge in the case has stated that the malicious prosecution claim may go forward.

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