The remedies for injured workers in the United States have steadily decreased over the past 30 years. In many states, such as Texas, very little is available for a brain injured worker. If you or an acquaintance suffered a brain injury on the job, keep in mind the following:
- Determine exactly how the injury occurred. If the worker is injured by a non-coworker, or by the actions of anyone not the persons employer, even if it occurred during work time, a third party action can be instituted. A third party action is a normal lawsuit against a defendant, which is not brought in the context of worker’s compensation. Each state has a worker’s compensation system, but in most instances it is possible to sue a third party defendant as well as obtain benefits from a worker’s compensation system.
- If a worker has sustained a brain injury on the job, the doctors that treat the individual after a release from the hospital will be physicians selected and paid for by the worker’s compensation carrier. Most worker’s compensation doctors are ones that lean towards finding less injury in a worker and lean toward putting the worker back to work as soon as possible. We have also found that many worker’s compensation doctors are not well trained in the latest medical literature involving brain injury. For this reason, a brain injury attorney should be contacted immediately so that important issues regarding treatment can be addressed to the injured party’s benefit. For example, certain tests such as a PET scan or high powered MRI need to be done to detect damage to the brain, in many areas, especially rural areas, these tests will not be done, will not be ordered or cannot be done. Therefore the patient needs to be taken to a larger metropolitan area to have the tests done. Likewise, the family cannot wait until the worker’s compensation doctors finally decide to have testing done. They are often far behind the curve on timing.
- Occasionally, if the facts of an injury show extreme negligence or indifference to injury on the part of an employer, a third party claim can be made by the injured worker, outside of the worker’s compensation system. For example, if a worker or their coworkers have complained about a certain dangerous condition in a work place (i.e. an overhead object which looked like it was going to fall) and with full knowledge of the danger, the employer does nothing to remedy the situation, and thereafter serious injury occurs, these cases can be looked at as possible cases to be handled outside of the comp system. Some common work place injuries resulting in brain injury include: exposure to toxic gas, falling objects, truck accident, falls, injury from machinery, and other methods.
- An immediate investigation needs to be undertaken to determine the exact cause of the injury. For example, if a worker driving an employer’s truck has a blow out resulting in a brain injury, a lawsuit against the tire manufacturer could be established. However, if the tire is lost or destroyed by the employer (because the presence or absence of a tire does not make any difference in a comp case itself, only in a third-party case), an extremely important cause of action, on behalf of the injured party, would be lost.