Employment Benefits For The Traumatic Brain-Injured

Kenneth I. Kolpan, JD (Editor)

When a person with a traumatic brain injury is unable to work, he or she may be entitled to certain benefits (compensation) that will ease the financial pressure during the rehabilitation process. Some benefits (such as worker's compensation and Medicaid) will pay for rehabilitation treatment while other entitlements provide income maintenance while the head-injured person is disabled from work.

A head-injured person may be eligible for supplemental security income (SSI), social security disability income (SSDI), workers' compensation, disability insurance, and personal injury compensation. (Recipients of SSI and SSDI also receive Medicaid or Medicare, both of which are medical payment programs.) SSI is a state-administered program that provides monthly stipends to a disabled person. SSDI is a federal program that provides monthly disability payments if the traumatic brain-injured person is unable to engage in any substantial gainful activity. Workers' compensation is a state-run program (usually privately insured) that provides medical benefits and weekly income to a person with a head injury if that person was injured at work and is unable to return to his or her job. Disability insurance is a private insurance program provided to employees that pays a portion of a disabled person's salary if he or she is unable to work. Finally, personal injury compensation is an amount of money paid by a party responsible for the head-injured person's injury. Part of the compensation represents past, present, and future lost income.

None of the above benefits is easily obtained by a head-injured person. The head-injured person must prove during the adversarial process that his or her deficits prevent him or her from working. The decisions to award benefit are made by laypersons unfamiliar with head injury. For example, an administrative lay judge or hearing officer decides whether benefits are to be awarded to a traumatic brain-injured person under SSI, SSDI, or workers' compensation. A personal injury claim is usually decided first by a claims adjuster (for an insurance company) or, if unresolved, by a jury. Similarly, a disability insurance claim is first considered by an insurance representative and, if not satisfactorily resolved, by a court.

Although all disabled individuals face these legal processes, the task for a traumatic brain-injured person is more difficult because of the nature of the injury. It is necessary that the decision maker (claims representative, judge, jury, or hearing officer) be educated through objective evidence about the consequences of a traumatic brain injury. When a person with traumatic brain injury comes before a decision maker, the individual may appear better than he or she actually is since the hearing procedures do not mimic the work environment: questions are asked in an orderly fashion by, one person, there are no interruptions such as phone calls, and there are no distractions that would cause difficulties for a person with traumatic brain injury. Deficits of memory, attention, and concentration are, therefore, difficult to demonstrate.

Through the use of experts in three areas, traumatic brain-injured persons can educate judges, juries, and insurance representatives of their right to benefits. First, a specialist in the rehabilitation field who is familiar with persons with head injury must offer objective evidence of the person's deficits through neuropsychologic testing, videotape of therapy sessions, and his or her observations of treatment. Second, a vocational expert familiar with the head-injured person's deficits, previous work history, current work potential, and available employment opportunities must offer evidence of how these deficits decrease the head-injured person's earning capacity. In a personal injury case a third expert is used: an economist who quantifies the head-injured person's diminished earning capacity over the predicted duration of his or her disability. The jury can then use this information in arriving at an amount of money to be awarded.

Though the adversarial process is a difficult obstacle for those with head injuries, with proper evidence and the involvement of rehabilitation specialists the traumatic brain injured person can succeed in the legal process and increase his or her chances that employment-related benefits will be awarded. Consequently, with less financial pressure the head-injured person can direct his or her efforts toward maximizing rehabilitation goals.