Using Vocational Experts in Traumatic Brain Injury Lawsuits

/ / Posts
vocational experts in traumatic brain injury

A traumatic brain injury (TBI) is a disruption of the brain’s ability to function normally due to an outside event. In 2017, more than one million patients were treated in emergency departments for a TBI. More than 326,000 TBI victims were admitted for hospital treatment. 

Traumatic brain injuries are usually caused by a blow to the head. When that blow results from another person’s negligence, lawyers represent the victim in lawsuits seeking compensation for (among other damages) loss of earning capacity.

Vocational experts and life care planners are key components of a personal injury lawyer’s proof of an injury victim’s lost earning capacity. A vocational expert’s testimony is often combined with calculations performed by an economist to guide a jury’s determination of the lost earning capacity that can be attributed to a brain injury.

Negligent Causes of Traumatic Brain Injuries

Some brain injuries are caused by intentional conduct, including a gunshot to the head and other violent assaults. Some are caused by participation in contact sports. Many are caused by falls that are attributed to the victim’s intoxication or poor balance rather than another person’s negligence.

Negligence is nevertheless a contributing factor to a high percentage of brain injuries. In 2017, more than 20% of patients treated for a TBI in emergency department visits were injured in a motor vehicle accident. Another 19% were injured by an unintended blow to the head, such as a tool dropped by a worker on a scaffolding or the negligent operation of a forklift. 

Accidental falls accounted for nearly 40% of TBIs. Hazardous property conditions cause slip-and-falls and accidental trips that result in brain injuries. The failure to install or maintain stair rails is another example of a property defect that can make a property owner liable for an accident victim’s TBI.

Classification of Traumatic Brain Injuries

Neurologists classify brain injuries as mild when the injury victim lost consciousness for less than 30 minutes, did not lose consciousness but felt dazed or confused for less than 24 hours after the injury occurred, or experienced a loss of memory for less than 24 hours.

Brain injuries are classified as moderate when the victim lost consciousness for more than 30 minutes but less than a day, did not lose consciousness but felt dazed and confused for more than a day, or experienced a memory loss that lasted more than a day but less than a week. Neurologists diagnose a severe brain injury when the victim lost consciousness for more than 24 hours or suffers from a memory loss that lasts longer than a week.

A mild TBI might result in short-term wage loss but might not affect future employment. About 20% of mild TBI victims nevertheless have persistent symptoms that affect the ability to drive, impair memory, or that affect attention span, reaction time, or balance. Depending on the prognosis, those victims may be unable to work in their former occupations for a significant length of time. 

While some victims recover from a moderate or severe TBI, most victims experience long-lasting or permanent impairments that challenge their ability to return to their former life. Moderate or severe brain injuries usually have a dramatic impact on employability. A moderate or severe brain injury may have a lasting impact on speech, vision, balance, memory, concentration, and reasoning. 

Impact of Traumatic Brain Injuries on Employment

A 2019 study published in the medical journal Brain Injury found that more than half of injury victims who sustained a moderate or severe TBI were not able to work after they were injured. While a significant percentage of TBI victims were able to find employment at some point, only a third were able to return to their own jobs.

Vocational rehabilitation, occupational therapy, psychological counseling, and continuing neurological treatment help many TBI victims regain the ability to be employed, although it may take time to achieve a favorable outcome. Studies show that only about 35% of victims are working after one year. That statistic improves to 42% within 5 years after the injury. 

Over the course of a lifetime, the study found that almost half of TBI victims were performing some kind of work. The work was often quite different from their previous employment. Victims of a TBI might have no choice but to work in a job that is specifically tailored to workers who suffer from cognitive impairments.

Traumatic Brain Injuries and Vocational Experts

Vocational experts review medical evidence and rely on doctor’s opinions to gauge the extent of a TBI victim’s disability. They also interview the victim, family members, and caregivers to learn about the victim’s limitations. They examine the victim’s employment history and consider whether the victim will be able to return to the same work that is within the victim’s training and experience. Vocational experts consider whether job accommodations are available, and whether employers are capable of providing accommodations, that would permit a return to former employment.

If limitations rule out a return to former employment, vocational experts assess the victim’s ability to perform other kinds of employment. After identifying the kind of jobs that the victim will be able to perform in the future, the vocational expert determines whether those jobs are available in the labor market within the geographic area where the victim resides. That data provides the basis for estimating the victim’s loss of earning capacity in the near-term and over the victim’s lifetime.

Traumatic Brain Injuries and Life Care Planning

The expense of coping with a life-changing injury is another component of damages that should be awarded to a TBI victim. Those damages can be substantial.

Injury victims are entitled to compensation that will help them resume the quality of life they enjoyed before the injury, or a changed life of equivalent quality. To get back to work, a TBI victim may need vocational training. If a brain injury affects the ability to prepare meals, go shopping, or get dressed, the victim will need assistants who can perform those tasks. A TBI victim may need a money manager, a speech therapist, and ongoing medication. In some cases, the victim might best be served by living in a residential care facility.

All of those needs come at a cost. Life care planners anticipate those needs and project a cost that injury lawyers can include in a settlement demand or as evidence at trial.