Losing Earnings after Brain Injury – Chief Economic Loss
Establishing Losing Wages after Brain Injury Is Critical for Total Compensation
By Gordon S. Johnson, Jr.
The total amount recovered from a brain injury settlement comes from loss of wages. The technical term for this is “loss of earning capacity.” The lawyer who only looks at past loss misses the aim. We must also look at future loss of wages. The claim is not measured by current loss, but what will be lost in the future due to brain injury.
A brain injury that results in loss of wages doesn’t begin and end with cognition. Most of the time, the cognitive deficits are the least important of symptoms and easiest to accommodate. The other areas are what are most important: mood, behavioral, and physical.
Criteria from the Social Security Administration make it apparent that cognitive problems are not the main issues. The following deficits are mental necessities needed at any job.
https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010!opendocument
- remember work-like procedures.
- understand and remember short and simple instructions.
- carry out very short and simple instructions.
- maintain attention for extended periods of 2-hour segments.
- maintain regular attendance and be punctual within customary tolerances. (These tolerances are usually strict.)
- sustain an ordinary work day routine without special supervision.
- work in coordination with and/or proximity to others without being (unduly) distracted by them.
- make simple work-related decisions.
- complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (These requirements are usually strict.)
- ask simple questions or know when to request assistance.
- accept instructions and respond appropriately to criticism from supervisors.
- get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.
- respond appropriately to changes in a (routine) work setting.
- be aware of normal hazards and take appropriate precautions.
Most of these issues are not going to be found in a basic neuropsychological examination. This is because the exam does not test for the above deficits. Someone may test normal but have many of these issues. Therefore, it is important for the lawyer to bring in real world examples of disability. If the lawyer waits until trial to bring these to the table, it will be too late for experts to consider these issues in making a disability determination.
Disability from brain injury has objective criteria. However, at its foundation, the joining of the cognitive, mood, behavioral, and physical deficits are important to measuring disability. The determination of disability should be made in accordance between the medical expert and a vocational expert witness. These witnesses’ accounts will add up to the full loss of earnings.
Gordon Johnson
Attorney Gordon Johnson is one of the nations leading brain injury advocates. He is Past-Chair of the TBILG, a national group of more than 150 brain injury advocates. He has spoken at numerous brain injury seminars and is the author of some of the most read brain injury web pages on the internet.
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