Workers’ Compensation and Veterans Benefits for Traumatic Brain Injury Sustained on the Job
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If you sustain a Traumatic Brain Injury (TBI) on the job or during your service there are a variety of resources that may help cover your lost wages, medical care, and other long-term support services. Read on to understand which may apply to you, and what steps you should take to ensure you realize their full benefits.
Workers’ Compensation
In following the leads and the facts, we learned that the trailer was loaded with ash from a “trash to ash” incineration plant in New York City. The plant provided steam power to New York City and, at the time of the incident, the driver was en route to deliver the ash at an approved landfill in Ohio. The plant used private hauling firms to dispose of the ash. In fact, the plant generated so much ash that it simply could not dispose of the ash fast enough, and as a result, the plant routinely overloaded trailers to get rid of it. The evidence showed that this incident trailer, like all the trailers that left this plant, was transporting a load of ash that exceeded the maximum weight limit allowed by law. Furthermore, the plant was paying drivers based on the weight of each load. Accordingly, the trucking firms were receiving extra income each time they transported an illegal, overloaded trailer. We proved, through trucking industry experts, that the facility was negligent for overloading this trailer and in violation of transportation safety laws and regulations.
It is beyond the scope of this article to provide detailed information about Workers’ Compensation benefits throughout the US. Our 50 State Resource Guide to Traumatic Brain Injury provides links to each state agency responsible for administering Workers’ Compensation, as well as references to the state laws that govern benefits.
It is important to consult an experienced Workers’ Compensation lawyer to review the case as soon as possible after an accident to consider the facts and circumstances and the benefits that may be available.
Worker’s Compensation for TBI: Important Facts
Workers’ Compensation is not traditional health insurance because it only covers health conditions that are job-related. For example, if a worker suffers a permanently disabling injury from TBI due to a fall at work, the worker should receive all wages and medical benefits for the TBI through Workers’ Compensation. However, if the worker is diagnosed later with a medical condition not related to work, Workers’ Compensation will pay for any medical bills for that treatment. Accordingly, any worker who is receiving Workers’ Compensation (and his or her family) will still need health insurance going forward.
Yes. Workers’ Compensation eligibility and wage benefits are governed by state law and vary. The eligibility requirements and limitations for Workers’ Compensation are unique in each state. Most states require businesses to have Workers’ Compensation insurance. Some states entirely exclude certain classes of employees. In California, for example, employers do not have to provide Workers’ Compensation benefits to domestic workers. Some states — Ohio, Wyoming, Washington, and North Dakota — ban private insurers from selling Workers’ Compensation insurance and require employers to purchase this insurance from government-operated insurance funds. Some states allow employers to self-insure, but there are strict requirements to make sure the benefits will be available for workers.
Yes. Employers are required by law to provide Workers’ Compensation insurance, which pays compensation for lost wages and medical care to employees who are hurt or ill due to their jobs.
Although there are variations among the states, Workers’ Compensation benefits typically include medical treatment and care, lost wages, and death benefits for eligible family members.
For disabling TBI injuries, Workers’ Compensation may provide a lifetime of compensation, services, and treatment for a work-related injury.
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Third Party Claims: Workers’ Compensation and Lawsuits
When an employee is injured on the job, sometimes another party or company (other than the employer or fellow employees) is responsible. When that happens, an employee may be able to receive Workers’ Compensation benefits plus make a substantial recovery in a personal injury claim. Any claim or lawsuit involving a workplace injury or death that is brought against parties other than the employer is called a third-party claim. Under most state laws, you can receive Workers’ Compensation and file a lawsuit/make a third-party claim for your injuries.
Most states also provide that an employer or Workers’ Compensation insurer has the right to be reimbursed some portion of the benefits if there is a lawsuit that results in a recovery or against a person or company that caused the injury. The public policy for this reimbursement (known as subrogation) is that when a worker receives money from a third party who is at fault, it is fair to reimburse the employer or insurance company for the benefits paid so that there is not a “double recovery” by the injured worker. Typically, the employer must share the fees and costs involved in the third-party claim, and any subrogation recovery by the Workers’ Compensation insurer is reduced by that amount.
Workers Compensation Legal Help for Individuals with TBI
If you or a family member have suffered a TBI at work, or any severe injury, you must consult an experienced lawyer as soon as possible after the injury — even if Workers’ Compensation benefits are being paid. The investigation of the third-party claim is one reason. Another is that there are many technicalities and idiosyncrasies to each state’s law, and it is important to make sure that, from day one, the injured worker and his family are receiving all available benefits, including the full amount of wages and other benefits provided under the law.
Our law firm has represented many workers who sustained TBIs and other catastrophic injuries in lawsuits for injuries that occurred on the job. Many workers assume incorrectly that they are not able to make a claim or file a lawsuit because they are receiving Workers’ Compensation. That is not true. Therefore, any time there is a severe injury on the job resulting in a TBI, an experienced attorney should carefully examine the facts and circumstances of the injury to evaluate whether there is also a potential civil lawsuit and additional financial resources.
In our experience, often the employee does not really know what caused the injury or if there is a third party that is responsible. Often, the facts surrounding the injury are never investigated by an experienced attorney. Often, the employer has incorrect information regarding the facts of the incident, and often employers wrongly blame the injured worker for the incident. And the investigation, if any, performed by the police, state safety agencies, and the employer do not focus on the cause of the injury. When the police investigate a work injury, they are interested in whether any criminal conduct occurred. When a federal or state work safety authority (such as OSHA) investigates, their purpose is to evaluate whether the employer violated safety rules and regulations. Similarly, when an employer investigates an incident, the purpose is to determine whether the employer or its employees committed any safety violations.
A case we filed on behalf of a client who slipped and fell provides a perfect example of the importance of investigating or at least asking the right questions. Our client had a nasty fall and suffered TBI and other injuries when she slipped on water in the mailroom. She assumed a fellow employee had spilled water and failed to clean up. Under those facts, there would be no third-party claim or lawsuit because the injury would be entirely due to the negligence of fellow employees or the employer. If those were the facts, the only claim our client could make would be for Workers’ Compensation (under the exclusive remedy doctrine). However, our investigation discovered that the puddle on the floor was caused by a leak in a small valve seal of an automatic envelope moistener and sealing machine. The manufacturer/seller of the machine connected it to a water supply line to “moisten” and seal envelopes. In addition, the employer had previously notified the manufacturer/seller of a leak, who had come out to repair it, but had failed to do so properly. Once the investigators contacted the witnesses and knowledgeable employees, there was no question that the leak caused the fall. The product was defective and taken offline shortly after the incident, at which time the manufacturer replaced the defective valve. This investigation revealed that a third party was responsible for the injury, a defect in the product, and/or a negligent repair caused the injury. In this case, we filed claims for both negligence and product liability and made a very substantial recovery.
Our firm has a long history of making successful third-party recoveries for our clients in work-related catastrophic injury and death cases, including falls, electrocutions, motor vehicle accidents, defective motor vehicles, building collapses, machinery and material handling equipment defects, fires, explosions, unsafe construction work site injuries, and medical malpractice.
In another case, our firm represented an auto body repair shop worker who was injured on the job when a paint booth exploded due to a defective gas valve manufactured by a third party. We filed product liability claims against the manufacturer of the paint booth as well as the valve manufacturer. In that case, as in many others, our client recovered substantial compensation from the lawsuit and received Workers’ Compensation benefits.
Damages in a civil lawsuit are much broader than Workers’ Compensation and include substantial claims beyond the limits of the Workers’ Compensation benefits. By filing a lawsuit, workers can receive a substantial cash recovery, in addition to Workers’ Compensation benefits. In a lawsuit, damages that can be recovered include such things as full lost wages and future earning capacity, past and future pain, suffering, loss of life’s pleasures, scarring, disfigurement, loss of spousal consortium, and past and future full medical care and benefits. These lawsuits can and do provide much-needed additional financial resources, which enable individuals with TBIs and other catastrophic injuries to live independent lives. For more information, see the Legal Help Section of this website.
Veterans Benefits
Veterans Benefits are a range of services and support provided by the government through the Department of Veterans Affairs (VA) to military veterans and their families, recognizing their service and sacrifices. These benefits often include healthcare, education assistance, disability compensation, housing loans, and employment support to help veterans transition smoothly into civilian life.
For eligible individuals with service-connected TBI and other service-related injuries, Veterans Benefits may include medical treatment, disability compensation, and monthly tax-free payments. A service-connected condition is an illness or injury caused or worsened by active military service. To qualify for VA disability benefits, you must have a condition affecting your mind or body and have served on active duty, active duty training, or inactive duty training.
Note: Veterans who have received other than honorable discharge (bad conduct or dishonorable discharge) may not be eligible for VA disability benefits. There are exceptions, but those involve an application for a discharge upgrade or a VA Character of Discharge review process.
To qualify, you must prove that you sustained TBI during your military service and that it is related to your service (an in-service disability claim). Alternatively, you could qualify if you had a pre-existing condition that was aggravated by your service (a pre-service disability claim) or if you developed a disability related to your service after leaving the military (a post-service disability claim). The VA has expanded benefits for veterans with TBI who receive certain related diagnoses, such as Parkinson’s disease, certain types of dementia, depression, unprovoked seizures, or diseases of the hypothalamus and pituitary glands.
As President Abraham Lincoln said, the purpose of veterans’ benefits is “to care for him who shall have borne the battle.” Our firm has assisted veterans who have suffered brain injuries and other conditions and diseases. Veterans with service-related TBI ofte have related psychological consequences, and we assist them in obtaining compensation for PTSD and other emotional illnesses related to their service.
Veterans’ Benefits laws provide a federal remedy for veterans, but the process can be challenging due to complex rules and regulations. Our experienced Veterans’ Benefits lawyers represent clients nationwide. If the VA denies your initial claim or if your disability has worsened and your benefits are insufficient, we can help. You can consult with a Veterans’ Benefits attorney today at no cost. For more information, see Legal Help.
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