On The Job Injuries

Head & Brain Injuries

TULSA WORKERS’ COMPENSATION HEAD & BRAIN INJURIES

Typically Oklahoma & Tulsa workmans compensation head and brain trauma cases are the most contentious and frustrating on-the-job injuries for both the employer and the injured worker–& even any attorneys or lawyers involved in the case. At the beginning of the workmens’ compensation case all may appear to be going well with medical treatment, weekly benefits and even in some cases sympathy being provided by the employer and its insurance company. However, head and brain injuries are generally slow to heal and as such over time the situation and relationship between the parties can quickly deteriorate. The employer and its attorney or lawyer may over time begin to question why the worker needs additional treatment and time to heal, and find the ongoing symptoms from which the employee complains bizarre and inconsistent with what it would expect from such a workers comp injury. These same symptoms can be quite upsetting and frustrating to the injured worker and his or her family as well—and even lead to family discord and relationship problems for the injured worker, further complicating a delicate situation and resulting in the employee losing his or her valuable support system and potential treatment advocates. Considering these factors many closed-head & traumatic & anoxic brain injury cases are settled by the brain-injured worker & his or her attorney and the employer and its lawyer bringing the case before either the Oklahoma City or Tulsa Workmens Compensation Court.

TRAUMATIC BRAIN INJURY (‘TBI’) & CLOSED HEAD INJURY (‘CHI’) CASES

Typical workmans’ compensation head and brain injuries common to the job site include, but are not limited to, closed head injuries (“CHI”) and traumatic brain injuries (“TBI”) as well as various forms of skull fractures, including “depressed skull fractures”. These type of head/brain injuries are commonly seen at the Oklahoma & Tulsa Workman’s Comp Court and are routinely treated by neurosurgeons and/or neurologists, with the former performing surgery to relieve swelling on the brain or to stop a bleed, or even both. To help better define the medical problem these specialists may cause the injured worker to undergo various diagnostic tests including MRIs, CT scans, EEGs and the like–tests which should properly be authorized and paid for by the workers compensation insurance company responsible for the injured workers care. However, in all but the most grave situations, these studies whether performed directly after the injury or over time normally do not reveal any gross abnormality of the brain–which leads the employer and specifically its workman’s comp insurer in the typical case to believe that no further treatment is indicated under the circumstances and that other workmen’s comp benefits should rightly be terminated, or even worse to conclude that the worker is exaggerating his or her worker’s comp injury for what it calls “secondary gain”. Certainly a brain injured workmans comp claimant can have a devastating and permanent brain injury and have negative findings on the classic diagnostic testing performed in brain and head injury cases. In many such cases employers and insurers will, in light of these negative findings (as well as recent changes in the Oklahoma work comp law requiring that a workers’ injury be proven by objective or anatomical findings of trauma), attempt to minimize the nature and extent of the injury or deny the injury altogether before the Oklahoma City or Tulsa Workmen’s Compensation Court.

Most significant brain and head injuries will also lead to secondary or consequential workmens’ comp injuries or conditions, most notably psychiatric or psychological disorders such as depression, anxiety, post-traumatic stress disorder (“PTSD”), obsessive-compulsive disorders (“OCD”) or even a personality disorder. Such medical conditions should rightly be considered as part of and resulting from the original workmens comp head injury and proper development of the claim is necessary by the injured employee &/or his or her attorney or lawyer for this in fact to occur. Certainly employers and their insurance companies will vehemently deny that such conditions are part of the established claim and will resist any attempts by the injured worker &/or his or her attorney or lawyer to bring these psychiatric and psychological impairments within the scope of the original claim and before the Oklahoma City or Tulsa Workman’s Compensation Court. In many instances employers will assert that any ongoing cognitive or behavioral problems are not a direct result of the original workers’ comp brain or head trauma but are instead pre-existing or incidental conditions for which they are not responsible under the Oklahoma Workers’ Compensation Law. To achieve this result many employers will seek out and obtain any available medical and other records of previous psychiatric treatment or counseling received by the injured worker as well as rely upon recent changes in the Oklahoma workers’ compensation law which requires that the work-related injury or trauma be the “major cause” of the resulting injury or disability. However, major cause does not mean the only cause, and any aggravation of an underlying and pre-existing mental or emotional condition, such as depression, should be fully compensated as part of the work-related injury if the case is properly developed.

LIMITS ON TTD BENEFITS FOR HEAD & BRAIN INJURIES: THE ‘SOFT-TISSUE INJURY’

Recent changes in the Oklahoma Workers’ Compensation law severely limit a hurt employee’s receipt of Temporary Total Disability benefits (‘TTD’) for a head or brain trauma case for so-called “Soft tissue injury” claims. More specifically, the Oklahoma City & Tulsa Workers’ Compensation Courts cannot award more than eight (8) weeks of Temporary Total Disability benefits compensation for head and brain injuries defined by the Oklahoma Workers’ Compensation Statute as a “soft-tissue injury”. Certainly, then, it benefits an injured worker, considering that medical doctors generally tell us that it takes up to a year for one to recover from a normal head injury of any significance, to prove, through his or her attorney or lawyer, that his or her head injury does not meet the definition of and is more than a mere “soft-tissue” injury. The Oklahoma Workers’ Compensation Act helps in this regard by defining what does NOT constitute a “soft-tissue” head or brain injury under the Oklahoma statute. To be sure-the limits imposed upon a “soft-tissue” injury in Oklahoma do not include any brain or closed-head injury which evidence any of the following findings:

PERMANENT PARTIAL DISABILITY AWARDS FOR HEAD & BRAIN INJURY CASES

Closed head & traumatic brain injury claims are not considered “SCHEDULED INJURIES” under the Oklahoma Workers’ Compensation Act for permanent partial disability (“PPD”) awards and settlements and are evaluated and compensated under the “OTHER CASES” provision of the PPD statute. This “OTHER CASES” PPD determination by either the Oklahoma City or Tulsa Workers’ Compensation Court provides that: ”(i)n all other classes of disabilities, which disabilities result in loss of use of any portion of an employee’s body, and which disabilities are partial in character but permanent in quality, disability shall mean the percentage of permanent impairment” and that ”(t)he compensation ordered paid shall be seventy percent (70%) of the employee’s average weekly wage [but not to exceed Three Hundred Twenty-three Dollars ($323.00) per week-the current maximum rate for permanent partial disability awards in Oklahoma] for the number of weeks which the partial disability of the employee bears to five hundred (500) weeks”. Oklahoma Workers’ Compensation Court rules provide that no permanent disability settlement shall be awarded in a brain or head injury case unless the injured Oklahoma City or Tulsa area worker &/or his or her attorneys or lawyers come forth and produce objective medical evidence of a permanent anatomical abnormality to the hurt employee’s brain &/or head. However–In determining the existence of such an abnormality, the Tulsa or Oklahoma City Court may consider if there is credible medical evidence that the ability of the injured employee to earn wages at the same level as before the injury has been permanently impaired.

PERMANENT TOTAL DISABILITY AWARDS IN TRAUMATIC BRAIN INJURY CASES

Traumatic brain and closed head injury cases of any significance will unfortunately leave most injured workers with cognitive and functional difficulties of such quality as to cause these hurt workers to have problems performing even ordinary daily activities. Most problematic is that these ongoing problems with the worker’s focus and concentration and other mental functions will in many cases prevent such worker from performing even simple, routine tasks required of even the most menial work activity–entitling the injured worker to an award from either the Oklahoma City or Tulsa Workers’ Compensation Court for Permanent Total Disability benefits (or “PTD” benefits). An injured Oklahoma City or Tulsa employee entitled to an award of PTD benefits will receive seventy percent (70%) of his or her average weekly wages during the continuance of the disability and until such time as the employee reaches the age of one-hundred-percent Social Security retirement or for period of fifteen (15) years, whichever is longer.

NOTE: In the event the Court awards both permanent partial disability and permanent total disability benefits, the permanent total disability award shall not be due until the permanent partial disability award is paid in full.

Serious head and brain injuries will result in permanent impairment of both an injured worker’s lifestyle and most importantly his or her earning capacity. Although vocational rehabilitation will be available to those suffering from head trauma serious enough to prevent return to his or her usual occupation, retraining may be difficult for one suffering from cognitive impairment and personality changes following a traumatic brain injury. These changes may effectively prevent the injured worker’s re-entry into the workforce in any meaningful way and warrant an award of permanent total disability benefits. THE ASH LAW FIRM understands the unique challenges facing brain injured workers and has successfully handled many cases of this type. Please call one of our attorneys for a no-obligation, confidential review of your head or brain injury case. You and your family’s future economic security may depend upon choices you make today.