Loss of Earnings after Brain Injury – Primary Economic Loss
Establishing Loss of Earnings after Brain Injury Is Critical for Compensation
By Gordon S. Johnson, Jr.
The size of any recovery in a TBI case is going to be largely impacted by the extent of loss of earnings after brain injury. The technical term for such element of damges in a brain injury case is “loss of earning capacity.” The lawyer who looks to see if you have had any wage loss is missing the point. The brain injury case is not built on a past wage loss, but a future loss of earnings. The damages are not measured by how much current loss of wages there might be, but how much difference there will be in the future between how much the brain injury survivor was likely to make before the injury and what they are expected to make, taking into account the brain injury related disability.
A brain injury related disability which will result in loss of earnings after brain injury does not start and stop with cognitive disability. Most times, the cognitive challenges are the least significant of the problems and the easiest to be accommodated for. It is the other elements of brain damage, mood, behavioral and physical problems which cause the greatest disruption in future earnings stream.
That the disability stems from far more than the cognitive challenges is shown by the Social Security Administration’s criteria for a mental condition which disables someone from work. The following failings will leave a person totally disabled according to the Social Security Administration, “Mental Abilities Needed for Any Job” at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010!opendocument
- remember work-like procedures (locations are not critical).
- understand and remember very short and simple instructions.
- carry out very short and simple instructions.
- maintain attention for extended periods of 2-hour segments (concentration is not critical).
- maintain regular attendance and be punctual within customary tolerances. (These tolerances are usually strict.) Maintaining a schedule is not critical.
- sustain an ordinary routine without special supervision.
- work in coordination with 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 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 the above issues are not susceptible to a simple neuropsychological evaluation. A person may test normal or very close to normal and have many of these deficits. This is why it is so important for the brain injury attorney to bring in proof of real world dysfunction in proving a case. But if the lawyer waits for a trial to put such information into the record, it will be too late for the expert witnesses to consider these subjective issues in making a disability determination.
The disability from brain injury has its objective criteria. But fundamentally, it is the combination of the cognitive, behavioral, mood and physical deficits that add up to a significant disability. The call of disability should be made in combination between a medical expert and a vocational expert. It is through such experts subjective application of clinical judgment and experience that the full loss of earnings after brain injury can be determined.
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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