So you’ve received your first traumatic brain injury (TBI) file. Now what? When defending traumatic brain injury claims, defense attorneys should start by looking across the aisle at the applicant’s attorney’s endgame and what they seek to achieve. That end goal will typically be to achieve a finding of permanent total disability.
Are those million-dollar settlements touted at CAAA so easily within reach on a TBI case? If the defense does not know what to look for and rebut before trial is set, the answer is yes.
The single most important thing to know about TBI cases is there is a conclusive presumption of permanent disability that specifically involves brain injury cases. If the applicant proves that they have one of the four conditions outlined in Labor Code section 4662(a), including an injury to the brain resulting in “permanent mental incapacity,” the applicant will be found to have permanent total disability. If the presumption applies, it may not be rebutted by other evidence.
What this means is you have to proceed with discovery, looking for those magic words in medical reporting… permanent mental incapacity. The permanent mental incapacity must be severe, not mild. Once you see those words, expect a Declaration of Readiness to Proceed. Get your rebuttal evidence in order and do it fast.
This finding will typically come from neuropsychologists. What exactly is neuropsychology? Neuropsychology has to do with the brain and behavior. A neuropsychologist conducts testing and attempts to show a link between the traumatic event and the injury. But keep in mind that neuropsychological testing, while often labeled as liberal, can be helpful if the legitimacy of the claim is called into question.
In many mild TBI cases, the applicant’s attorney and the treating doctors will usually rely on subjective evidence offered up by the applicant or their family members. They will try to establish a pre-injury baseline with little to no objective evidence. Obviously, this is problematic from a defense perspective. However, neuropsychological testing from a reputable neuropsychologist can offer a method of rebutting subjective evidence, if done at the correct time in the course of litigation.
Remember that applicants with a mild traumatic brain injury should see their symptoms improve in the first six to 12 months. If the symptoms do not improve in this timeframe, your case is probably not a mild TBI case and you should adjust your discovery plan accordingly.
Will the applicant’s attorney request a compensability panel from the DWC Medical Unit in neuropsychology? No, because the DWC Medical Unit stopped issuing neuropsychology panels.
That being said, a neurology panel of QMEs will do just fine if you are looking to pull a compensability panel. After all, neurologists treat disorders that affect the brain and will request and review objective evidence such as a CT scan or MRI of the brain. If the neurologist cannot address cognitive impairment because their focus is on the physical effects of neurological disorders, they will say so and make a referral to a neuropsychologist and you can agree to a consult in your MPN.
While there is a lot more that can be said about TBI claims, keeping the above information in mind will set you up for a successful start, as you navigate this new territory.
