|
There may be numerous sources from which
the TBI or SCI victim may have a right of recovery depending
upon the circumstances giving rise to the cause of the
injury. The following is an effort to provide the reader
with some generic information which would have to be pursued
by an attorney experienced with the handling of TBI and SCI
cases.
WORKER COMPENSATION BENEFITS
Temporary Disability
Many TBI or SCI cases arise out of a person's employment and are caused by an
activity associated with their employment. Under such a circumstance, the
injured employee will likely be entitled to certain worker compensation
benefits. While the specific entitlements may differ from state to state, there
are certain basic benefits that are common to most worker compensation systems.
The injured employee is entitled to receive a Temporary Disability (TD) benefit
that is usually based upon a percentage of their average weekly wage at the time
of the injury. This TD benefit is paid while the employee is undergoing medical
treatment and has not reached a point in their medical care where their
condition has been determined by the medical providers to be permanent and
stationary.
Medical Care
The injured victim is entitled to have his or her medical treatment
associated with the injury paid for by the employer or the employer's worker
compensation insurer for the rest of his or her life. The employer or the
employer's worker compensation insurance carrier will often attempt to "control"
these costs by insisting that the injured employee obtain treatment from
physicians and facilities preferred by the insurance company. In most states the
employee has the right, at some point in their treatment, to choose their own
health care provider. The employer or its insurance company must still pay for
the employee's choice of health care providers.
Permanent Disability Benefits
Once the injured employee reaches a point in his or her medical treatment
where the physician(s) agree that no further medical treatment will improve the
level of the patient's disability, the injured employee is eligible to receive a
Permanent Disability Benefit (PD). The amount of this benefit is usually
determined by the percentage of disability and other factors such as the
person's age, type of work, and education. These PD benefits are calculated as a
weekly amount of benefit and are paid every two weeks. There are ways to
negotiate a lump sum payment in lieu of the weekly benefit, which is usually
accomplished through a settlement with the employer or worker compensation
insurance company.
Vocational Rehabilitation
Most worker compensation systems require the employer or its insurance
company to provide the injured employee with vocational retraining if they are
not able to return to their usual and customary work. There may be a limit on
the amount of cost that the employer or insurance company will be required to
pay for this benefit.
Every state is different and the injured party should consult with a lawyer
familiar with the worker compensation benefits in his or her state. For the
serious TBI or SCI victim the benefits offered through worker compensation may
be very substantial, especially as a means of funding a life time medical care
plan.
STRUCTURED SETTLEMENT OF A PERSONAL INJURY CASE
If the TBI or SCI victim was injured as the result of the fault of another
and the other party has adequate insurance or significant personal assets, it is
often advisable to research the possibility of reaching a settlement with a
structured payment plan. Basically, the parties agree on a certain settlement
amount. Instead of paying this amount as a lump sum, the "at- fault" party or
its insurance company will purchase an appropriate "annuity" insurance plan from
another insurance company that sells these special annuity plans. The injured
victim will then receive guaranteed payments on a monthly, or annual basis. The
plan may provide for a combination of lump sum payments periodically along with
monthly or annual payments. These are normally guaranteed for a number of years
but available for the life of the victim. For example, the plan may be
guaranteed for twenty (20) years with payments for life. If the person lives
longer than twenty (20) years, the plan will continue to pay for the remainder
of the victim's life. If the person dies before twenty (20) years, the balance
of the payments through the twentieth year are paid to a designated beneficiary.
No payments are made past the twentieth year.
There are several advantages to a structured settlement. First, the annuity
payments are not taxable. If the injured victim was to receive a lump sum
settlement, and invested that money, the interest income on the investment is
taxable. In a structured settlement, the insurance company in effect invests the
money for the benefit of the victim and the annuity payments are considered part
of the personal injury settlement which is not taxable. Second, this is a means
of insuring that the money will be there as needed. All too often people
mismanage large amounts of money and fall prey to hustlers and con artists who
will take advantage of them. By placing the proceeds of a personal injury
settlement in a structure, the injured victim may be better protected from
mistakes or abuse. Finally, the insurance companies are sometimes more
interested in offering a structure which may yield a valuable annuity, but which
they may purchase at a discounted amount. This allows the insurance company to
save on the settlement cost, but does not devalue what the injured victim
receives in benefits.
The ability to enter into a structured settlement largely depends on the
availability of insurance and usually involves settlements of several hundred
thousand to millions of dollars.
MEDICARE /MEDICAID, VETERANS ADMINISTRATION , AND OTHER GOVERNMENT BENEFITS
The injured TBI or SCI victim may be entitled to receive certain government
benefits if they qualify. Medicaid is a Federal system created to provide
medical assistance to people who are in a defined financial category where they
cannot afford the cost of care for themselves. It is generally available to
persons over 65 and sometimes to persons under 65 who meet certain
qualifications, such as persons under 65 who are receiving Supplemental Security
Income (SSI) benefits.
The Medicaid program is a federal program administered by participating
states. Both the federal government and the participating state governments
contribute to the fund. Medicaid is a major provider of long term nursing care.
To qualify for Medicaid benefits is a bit complicated. It depends on whether
the injured victim is married; widowed and receiving a pension and/or social
security: or is single. What a person owns in assets can affect his or her
ability to qualify. If a person attempts to transfer their assets in order to
qualify, that can affect the timing of government paid benefits.
The TBI or SCI victim should contact the closest federal Social Security
office to consult with a qualified representative to determine their eligibility
for Medicaid benefits.
If the TBI or SCI victim is a veteran, he or she may be entitled to lifetime
medical care and other benefits through the Veterans Administration even where
the injury is not service related.
There are numerous other government resources provided by various states that
may provide assistance to the TBI or SCI victim that should be explored. For
example, if the injury was caused by someone who committed a crime, by a drunk
driver perhaps, some states have a Crime Victims Fund that offers some financial
assistance. If the injury was caused to a minor, there may be a program through
the state or county Department of Social Services for Aid to Families with
Dependent Children (AFDC). In addition, there are numerous foundations and
non-profit organizations which may offer financial assistance.
HEALTH INSURANCE AND HEALTH MAINTENANCE ORGANIZATION (HMO) COVERAGE
Even though the injuries may have been caused as the result of an accident
where someone else is at fault, the injured victim's health insurance and/or HMO
has an obligation to provide the medical care available under their coverage.
Usually, it will take some time to sort out what insurance, if any, the person
who caused the accident has and will pay. In the meantime, the injured victim
needs immediate care. The victim's health carrier must cover that care. The
health insurance company or HMO will usually then have the right to seek
reimbursement from the "at-fault" party. This is called subrogation. The health
insurance carrier or HMO may elect to claim a lien against any proceeds the
injured victim they insure receives from a third party instead of pursuing their
subrogation claim. This is referred to as a "third party lien" right.
The injured victim should always advise their health insurance carrier or
their HMO immediately following any accident.
If you have any questions, one of our lawyers will be please to take the time
to talk with you. Phone: (800) 617-2622 or email:
mz@zalkin.com
| 
