Valerie lives in Maryland, a state whose insurance laws mandate a minimum of five thousand dollars in personal injury protection (PIP) for every driver. This insurance is meant to cover the policyholder's initial medical expenses in the event of an automobile accident. The assumption is that an injured party can sue to recover expenses above that amount if necessary. Valerie — like most of the 98 percent of Marylanders who purchase only minimum PIP coverage — never considered that the five thousand dollars might be inadequate. She discovered this only after her accident. Valerie also didn't realize that being injured in an accident might make it impossible for her to obtain medical insurance — until a sharp premium increase forced her to cancel an existing medical policy after her accident. For three years, she was repeatedly denied replacement coverage, until a lawyer suggested that she purchase open-enrollment insurance. This is a costly and very limited type of hospitalization and catastrophe coverage that cannot be denied to anyone, regardless of preexisting conditions. Valerie says that the benefits provided by this policy are a disappointment, but at least it covers most catastrophic hospital bills — a concern due to her family medical history.
Valerie sees herself as a victim of the auto accident that ended her artistic career, and also as a victim of the legal and healthcare systems that were supposed to help her. She is lucky to have a family that has been able to assist her financially. Even so, she has at times thought about moving with her husband to his native Italy, where the government-run healthcare system would afford her better care than she has received in the United States.
Mild Traumatic Brain Injury (MTBI) carried with it two main financial issues: lost wages due to layoff, firing, or a change in employment; and medical bills for the extensive services that are often needed after an injury of this type. This chapter examines both of these issues and gives advice concerning the types of financial help that may be available to you, as well as suggestions for dealing with reductions in income and tips to help you cut through the red tape that so often surrounds the insurance process.
Obviously, after an injury like MTBI, a certain recovery period is usually required before you can return to work. In some job situations, it is possible to take a medical leave of absence with pay. In others, you may be paid during your recuperations from illness or injury only to the extent of accumulated sick and vacation time. If you are self-employed or have no employer-provided benefits, you may not be able to get paid time off at all.
Regardless of your employment situation, you may attempt to return to work during your recovery only to discover that your ability to function on the job is not what it was prior to injury. You may see the need to take a different job that calls for less intellectual processing, for example, or you may even have to stop working — at least for the present. Many people with MTBI end up losing their jobs because their work performance doesn't measure up after what their employers consider a "reasonable” period of time. Others leave voluntarily or abandon a business rather than face daily frustration and embarrassment.
The result is that many people with MTBI find themselves earning less money after injury than before. Meanwhile, normal household expenses remain more or less constant and medical bills mount up rapidly. Because it is often impossible to predict how fully you will recover from MTBI, or how long recovery will take, it is important to know how you can obtain financial compensation to help you with your expenses.
Types of Compensation
"Before my accident, I had a successful two-office psychology practice. Fortunately, I carried overhead insurance to cover fixed expenses such as rent, utilities, phone bills, advertising, managerial and secretarial help, and my answering service. I had income disability insurance and, because I was also an employee of my corporation, workers' compensation coverage. My overhead insurance covered my business expenses until I was able to close my office and, because my accident occurred as I was returning to my home office from visiting a patient, I also qualified for workers' compensation benefits. I was required to undergo four separate neuropsychological examination and several consultations with an independent physician, but for the first four years, the workers' compensation agency was cooperative, congenial, and efficient. Then policy and personnel changes brought a rude awakening. Bills were delayed for months and then paid only in part, many more evaluations and tests were required, and my new claims representative hinted that many of my expenses would no longer be covered. I was forced to seek legal counsel.”
The possibility of compensation for lost wages and medical bills is determined by the circumstances of your MTBI. These injuries most commonly result from auto accidents, sports mishaps, falls, blows to the head, or assault. If your MTBI occurred in a car accident, financial support may be provided through automobile insurance. If your injury happened on the job, you can seek assistance through workers' compensation. Liability and health insurance usually cover sports and other injuries that take place on school premises; homeowner's insurance, health insurance, or, in some cases, government assistance may cover injuries that happen at home. Some states have victims' compensation laws that provide for financial assistance for persons injured as a result of physical assault.
Dealing with insurance companies and/or government agencies can be one of the most difficult and frustrating aspects of an MTBI. Payment for injury is a billion-dollar business that employs thousands of doctors, attorneys, investigators, consultants, and office personnel. When you become involved in this system, you become a case number in a huge maze. It is important to bear in mind that just because you have been the victim of a traumatic brain injury, you do not have to become a victim of bureaucracy and corporate decisions. Remember that insurance companies are in business to make a profit, and that these institutions deal daily with people who want to take advantage of the system. As you pursue your case, you are likely to encounter delays, tremendous amounts of paperwork, and a certain lack of sensitivity to your needs, so it is important to enlist someone — a family member, a trusted friend, or someone from your local brain injury association — to be a personal advocate who will work with you on your behalf. In addition, it is often advisable to secure the services of an attorney. (See Finding the Right Attorney, further in this chapter, for help in your search for appropriate legal counsel.) In this section, we will look at the various possibilities for financial compensation.
Automobile insurance is designed to deal with responsibility, liability, and medical aspects of a car accident. In some states, a determination must be made as to who was responsible for causing an accident before a claim for compensation can be settled. Traditionally, damages are paid by the insurer of the party determined to be at fault. Many states have sought to simplify this process by passing so called "no-fault” insurance laws. Under no-fault insurance, each person's policy covers expenses incurred. If it can be established that one party is more than 50 percent at fault in the accident, his or her insurance company then assumes full financial responsibility.
There are three types of damage compensation that you may qualify for after an auto accident:
- Special damages. These provide reimbursement for your medical expenses and compensation for lost wages.
- General damages. These reimburse for what you could have earned if you had not been injured, and provide compensation for emotional pain and suffering cause in your daily life.
- Punitive damages. Punitive damages may be assigned by the court if an insurance company fails to issue a reasonable settlement on a valid claim.
Most automobile-insurance policies have liability coverage to protect against both bodily and property damage. This will pay for damages you may cause someone else. If you live in a state with no-fault laws, you may have personal injury protection (PIP), which can cover both loss of wages and medical payments. In states with fault-based insurance laws, there is a similar type of coverage called MedPay for medical bills. Your insurance agent can provide specifics about the coverage afforded by your policy. Depending on where you live, you may also be able to purchase additional insurance to protect yourself against accident or injury caused by an uninsured motorist.
Following an accident, your first step should be to call your insurance agent — the same day, if possible. If you have sustained injuries from an auto accident and it is clearly not your fault, the insurance company will assign one of its own lawyers to act on your behalf. In many situations, if the details of what happened are clear-cut, you do not need to obtain your own lawyer. In other cases, your insurance company will advise you to do so. Most claims for medical compensation, suffering, and the like are negotiated between the insurance companies or settled out of court between lawyers. If your or the other party's insurance company questions the circumstances of an accident, it is imperative that you obtain private counsel.
Have your attorney and your personal advocate look at any proposed settlement with your or the other party's insurance company before you agree to it. Remember that symptoms do not always arise immediately after MTBI and that your injury may have affected your judgment.
If your MTBI occurred as a result of a fall or sports injury, your medical expenses may be covered under your health-insurance policy. The extent of payment depends on the type of policy you have, the coverage it provides, and the amount of mandatory copayments, if any. Many policies require you to choose doctors and medical facilities from among those participating in the health plan, which may mean choosing among healthcare providers who lack specific training or experience in treating MTBIs. In most situations, health insurance companies resist paying for care provided by practitioners outside their own networks, even though this can have a negative effect on the recovery process. However, a health-maintenance organization or preferred-provider association may allow outside consultations if you can prove that your health needs cannot be met otherwise.
The first step in arranging for care outside your health-plan network is to consult your primary care physician. If he or she agrees that there is no one in the managed care network to help you, then he or she should make a referral to an appropriate person outside the network. If your primary care doctor refuses to make an outside referral because he or she will be penalized financially for doing so, you can see a doctor of your own choosing. In this situation, however, you will have to pay the outside doctor's cost yourself. You should then consult with your lawyer about including this bill in your settlement.
Available coverage and services usually depend on the health coverage you or your employer held prior to your accident, or what is covered under workers' compensation or the other party's policy. Some policies cover occupational therapy, chiropractic and psychological services; some do not, or have strict limits on such coverage. Only in the past few years has alternative insurance that covers such services as acupuncture become available.
Finding the Right Attorney
It is often advisable to hire an attorney to help you through the process of securing compensation for your injury. Without legal help, this process may be exceptionally difficult for a person with MTBI, who looks fine but whose poor judgment places him or her at an enormous disadvantage before the process is even started.
To help locate an attorney with expertise in MTBI, ask your state brain injury association if they have a referral list, or ask your healthcare professional for help. If you are in a brain-injury support group, ask other members whose services they have used or whom they would recommend. Be cautious of lawyers who advertise on television. Claims of experience with injury cases are no guarantee that an attorney is necessarily the right choice for you.
Depending on where you live, you might be able to locate more than a few lawyers who are specialists in personal injury or workers' compensation and who have an understanding of traumatic brain injury. Once you have compiled a list, you should arrange to interview each candidate personally. This is extremely important, not only to ascertain a prospective lawyer's expertise but also to ensure that you feel comfortable with him or her. Because your MTBI may cause you to have problems recalling information, consider bringing a tape recorder, notepad, or friend or family member to the interview.
The following are questions to ask an attorney that can help you determine whether he or she has the background necessary to properly represent you after a MTBI:
- How many cases similar to mine have you been involved with as the principal attorney over the past three years? Though the numbers may vary, it is important that the lawyer has had MTBI clients for whom he or she has won settlements.
- What percentage of your practice is devoted to cases or injuries similar to mine? This too may vary, depending on where you live, but it can be a good indication of an attorney's experience with MTBI cases.
- What were the results in terms of settlements or verdicts in the last five cases that you handled involving injuries similar to mine?
- Could you furnish a list of prior MTBI clients?
- How many seminars or conferences have you attended over the past two years involving presentations on injuries similar to mine? Ideally, your lawyer will have attended more than two such seminars.
- How many articles have you written over the past three years involving any aspect of injury similar to mine? It is desirable for your chosen attorney to have written at least one.
- Would you explain the process you follow in handling a case like mine?
- Do you have consultants with expertise in MTBI?
- What kinds of problems might occur in the settlement process?
- Will you personally work on my case or do you have an assistant? If an assistant will be used, does that person have experience with MTBI?
- Will you personally be representing me in court? If not, who will? Does that person have expertise in MTBI?
- What are your legal fees? Generally there are three types of fee arrangements: hourly fees, flat fees, and contingency fees. In most states, lawyers obtain a contingency fee — usually 33 percent — for auto accidents, and a fixed rate for workers' compensation settlements. The client does not pay the lawyer; rather, the lawyer receives payment only if the client is awarded a monetary settlement.
Following an MTBI, your choice of legal representation can be crucial to obtaining appropriate financial compensation for your injuries. Time invested in locating an experienced attorney will be time well spent.
There are a number of different government programs that may provide benefits to people with MTBI: Medical Assistance (formerly called Medicaid); Medicare; Social Security Disability; Supplemental Security Income; and Veterans' Administration programs.
Medical Assistance is a combination state- and federally-funded program. Eligibility depends on your financial and medical needs. Depending on your state, there may be restrictions on coverage, including the types of treatment, equipment, and medication covered. Medicare pays for medical services for persons who are age sixty-five or older, or who have received Social Security Disability income (see below) for at least two years.
Social Security Disability (SSD) is available to individuals whose disability occurred within five years of their last employment and who were employed for a required period of time. If you are a widow or widower and have become disabled, you may be eligible for this benefit if your deceased spouse would have met the employment criteria. There is no set salary or income required for this benefit. If you do not qualify for SSD, you and your dependents may be eligible for the Supplemental Security Income (SSI) program. This program is available to individuals with disabilities who have never been employed or who became disabled before they contributed to the Social Security fund through employment for a sufficient amount of time. It is also available to those with little income and few resources.
If you need help in applying for any of these government benefits, call your local Social Security office, listed in the government section of your local telephone directory. They can give you guidance and assistance in the application process. However, you should be aware that getting this type of help can be difficult and time-consuming, and that eligibility requirements for certain benefits are subject to change in the future — most likely in the direction of becoming more restrictive. Nevertheless, you should not be discouraged if your claim is rejected at first. With your doctor's support, persistence, and an appeal or two, you may ultimately succeed in obtaining benefits.
In most states, there are Veterans' Administration hospitals with physicians on staff who are knowledgeable about brain injuries. If you served in the armed force and have become disabled, you may be eligible for wage or medical assistance. Contact the nearest office of the Veterans' Administration, listed in the government section of your local telephone directory, to determine whether you qualify and learn how to apply.
In addition to these nationwide programs, some states also have programs available to injured people who are eighteen years of age or younger. Your local brain injury association can advise you of state programs for which you may be eligible. If you are disabled and have minor children living at home, you may qualify for benefits under Temporary Assistance for Needy Families. This program is administered through the states and different states have different names for it. Eligibility requirements and benefits likewise vary from state to state. For specific information about benefits that may be available to you and how to apply for them, contact your social services department.
One thing is more or less constant when dealing with any government agency: Getting adequate care can be difficult because you must meet stringent requirements and deal with a fair amount of red tape and paperwork in order to benefit from government programs. In addition, the coverage provided is limited. In some states, outpatient services in particular are strictly limited. If you encounter problems filling out Medical Assistance or Medicare claims, you or your personal advocate can contact other doctors and medical facilities, a social-service worker, or your state legal-aid service for help in expediting your claim.
"About ten years ago, I got a job as an assistant to a film director and his actress wife. Six years later, while checking the gate where I worked, I fell down onto the driveway. I was taken to the local hospital. My apparent injuries were two teeth protruding through my upper lip. In the weeks that followed, I experienced various symptoms of MTBI, such as smelling phantom smells, feeling cold, and having problems with articulation, memory loss, confusion, and poor judgment. I was contacted by a workers' compensation representative suggested that I go home and rest. After a month, I felt better and attempted to resume working. However, I soon discovered that I could no longer perform the needed duties. I eventually quit my job.
In the years that have followed, I have been assigned several claims adjusters; however, no treatment was provided for my MTBI. I finally realized that I needed to hire an attorney to represent me. After years of waiting, I recently had neuropsychological testing done, but I am still awaiting appropriate rehabilitative treatment for my MTBI.
If your MTBI was employment related, you are probably covered by workers' compensation laws. The time and procedure for filing varies from state to state, and the process itself can be tiresome and frustrating, so it is advisable to contact an attorney or a brain injury association advocacy program for assistance. Under workers' compensation law, you may be entitled to receive a percentage of your preinjury earnings as well as payment for medical expenses. Before being approved for benefits, you will probably be required to undergo an evaluation by a specific medical professional under contract to the workers' compensation insurance carrier. This person's opinion may determine whether certain services will be covered and/or if existing services should be continued. If the insurance carrier's physician feels that particular services are not necessary, the carrier may stop paying for those services. If you disagree with the doctor's evaluation, you can get a second opinion and go to court to argue your side. Meanwhile, if you need the service under dispute, you must pay for it yourself or run up a bill.
Even payment for treatment approved under workers' compensation can be delayed, sometimes for long periods. It is not unusual for doctors to refuse to accept workers' compensation patients because of the paperwork, minimal payment, and other obstacles. Don't give up, however. Your local brain injury association should be able to help you locate a qualified practitioner or practitioners who accept such patients.
If your MTBI occurred as a result of a crime or physical assault, you may be entitled to compensation for lost wages and medical expenses through a state victims' compensation fund. Your lawyer, the local legal-aid society, or the office of your state's attorney can tell you whether there is such a fund in your state. The rules and requirements for receiving compensation from victims' funds differ, but in most states, a claim must be filed within a specified period of time. It is therefore important to find out what is needed and to get the necessary forms filled out as soon after your injury as possible.
Many companies supply income or disability insurance as part of an employee benefit package. Disability coverage pays a percentage of your previous wages while you are disabled, though exactly what percentage and for how long depends on the individual policy. The maximum dollar amount is not likely to approach the amount you previously earned, but it can help if you are unable to work. If you have this kind of coverage, your employer can advise you of the proper filing procedure. If you are self-employed and have private disability coverage, you will have to file a claim with the insurance company on your own. You may want to ask a family member or your attorney to work on your behalf to obtain the needed compensation.
"I have saved a lot of time ad energy by filling out the personal data section at the top of a blank medical form and then making photocopies of the entire form so that only the date and signature need to be added in the future.”
"I highly recommend learning to interview professionals to ensure that you are seeking help from appropriate sources. Also, make photocopies of every application, form, and cover page that you submit to agencies and insurance companies. If you need to reapply or be recertified for benefits in the future, you can simply copy the previous form.”
"I'm fortunate in that I had insurance, and that I'm able to afford my daily bills — unlike many people with MTBI, who have to choose between paying medical bills and feeding their families. To help me cope with seemingly uncaring bureaucratic personnel, I've found comfort within my local brain-injury support group and from my psychotherapist and the many caring friends I've made in cyberspace.
The process of filing for compensation for lost wages and medical expenses can be long and frustrating. The suggestions that follow can make things a bit easier:
- Be organized. Keep a daily diary, beginning with the events that led to your injury. Keep all your medical records in one file, and create another file for records regarding you accident. List names of witnesses, emergency personnel, and doctors, and keep detailed notes about your symptoms. If necessary, ask a friend or family member for assistance with this.
- Document all telephone conversations relating to your accident by keeping a log. Include the date and time of each conversation, the name of the individual you spoke to, and a summary of your conversation.
- If you hire a lawyer to help you secure compensation for your injury, send him or her copies of your telephone log and all written correspondence relating to your accident and its aftermath. If your lawyer does the paperwork, keep notes of (or tape-record, with permission) your conversations with him or her.
- Find a good mental health therapist who has had experience with MTBI. If you're your health and recovery begins to be affected by your experiences with healthcare providers, insurance companies, and government agencies, talk to your therapist about this.
- If strained finances prevent you from locating a mental health therapist, contact your local brain injury association or a nearby hospital's mental health clinic for assistance.
- Seek out a support group. Call the Brain Injury Association (BIA) to see whether there is an MTBI group in your area. Also find out whether the BIA can put you in touch with an advocate to assist you with money issues.
- If you have access to a computer, explore online chat lines and bulletin boards. Discussing your problems with other people with MTBI can be extremely helpful. If you do not own a computer, check to see if your local public library has available for patron's computers with online capability.
Some people with MTBI may neither have insurance nor qualify for government compensation or assistance programs. It may be that you employer does not offer health insurance or other benefits, or perhaps you are self-employed and you cannot or choose not to buy disability or medical insurance on your own because it simply costs too much. You may have lost your job after suffering an MTBI, and with it, your insurance — just when you needed it most. Or you may be able to work part-time, but even though you do not qualify for government assistance. Meanwhile, your household and medical bills continue to pile up. While a long-term solution may seem elusive, there are a few options to consider in these circumstances:
- Switch roles with your spouse. If you are the breadwinner, discuss the possibility of your souse taking on more hours or, perhaps, a second job.
- Change your lifestyle. Do what you can to prevent your household bills from becoming unmanageable, including selling your home or other assets if necessary. If needed, ask a trusted family member or friend to do an overall budget inventory to see what you are actually spending on things. Then you can discuss ways to scale back your spending and develop a reasonable budget to live on.
- Be honest about your situation with creditors, doctors, and your landlord or mortgage banker. You may be able to negotiate payment plans that are easier to meet.
- Allow friends and family to help. Doing so can be embarrassing but accepting heartfelt assistance can help you through a very difficult time.
- Consider living with your parents, in-laws, or other willing relatives for an established period of time.
- If your children require assistance, contact your local mental health facility about free counseling and other services in your area.
- Contact your state chapter of the Brain Injury Association. Laws are always changing, and new options for financial assistance may become open to you. In addition to providing advocacy and other services, the BIA monitors such developments.
- Check with religious organizations in your community about funds and services available to people in need. They may offer or know of sources of basic necessities such as food and clothing at no or reduced cost.
- Ask your doctor or advocate about programs for obtaining prescription medications at reduced prices. Some pharmaceutical manufacturers offer such benefits to qualified persons.
- If you need a lawyer, check with your local and state government about free legal services available to people who qualify. Also, some attorneys dedicate a certain amount of their time to offering free, or pro bono, legal services. In some situations, these arrangements may not be necessary, since legal fees are usually collected as part of a settlement.
- Consult your bank about services that can advise you about managing your money and obtaining credit while you recover.
- If your financial situation is truly unmanageable, consider filing for personal bankruptcy. This decision should probably be considered a last resort, and it should be made with great care and under an attorney's guidance. However, bankruptcy can sometimes be the right choice, particularly if your debt is overwhelming.
Financial concerns are a very real part of coping with MTBI. The way money issues are dealt with can dramatically affect your final outcome. Not only do you need money for daily living expenses, but after MTBI, you are likely to need money to finance a rehabilitation process that can last for some time — in some cases, for years. It is not always easy to navigate the maze of red tape and paperwork required, but help is available to most people with MTBI through commercial insurance, health insurance, government assistance, workers' compensation, and victims' compensation. When coping with monetary difficulties, it helps to remember that you are not alone. Consult with trusted family members or friends, an attorney with expertise in MTBI, and/or your local brain injury association, and allow yourself to accept their advice and assistance.