Work Comp Injury | Spinal Cord Injuries
When there is a spinal cord injury, disability in the workers' compensation system can be tricky. The current system requires use of a book called the AMA Guides which rates "medical impairment." Medical impairment often does not take into account functional loss. Functional loss is essentially how you are limited in your daily life and work. Medical impairment often times will not take into account the crush injury impact.
Spinal cord injuries can impact a person far beyond impact or loss of use of extremities. They can affect bodily functions. This can impact the use of the AMA Guides in obtaining accurate disability in your case. The AMA Guides don’t, in a “strict” sense, consider functional loss and therefore, can reduce disability unless an experienced attorney can work with the book and the law to accurately report your disability.
As you can see, disability in these types of cases make them complex.
Between 40 and 45 percent of individuals with spinal cord injuries need personal assistance with some daily activities, so a life care plan may be appropriate in these cases. This group of individuals who need personal assistance do have more severe spinal injuries.
Personal assistance may be needed with getting out of bed, managing bowel and bladder issues, bathing, dressing, and other daily activities.
Even the percentage of persons with lower level injuries may need personal assistance as they age, so a life care plan may consider the aging process.
Failed back syndrome can be as disabling as a direct spinal injury and often can progress to the level of a spinal injury and may need to be treated as one when considering ones’ medical care.
Injuries that occur on or after 01/01/2013 do not allow disability for psychiatric injuries that are consequence of injuries. For example, a spinal cord injury can have significant psychological impact, however, on the surface the law does not allow additional permanent disability for psychiatric disability. Understanding the nuances of the law does lend itself to exceptions to the rule. It's not just knowing the rule; it's understanding how to develop the case in a fashion that the exception to the rule is applied.
Social Security / Medicare
In many catastrophic claims, the injured worker is eligible for Social Security Disability. Although that is not an area of law we handle, it's important that a workers' compensation attorney understand the impact of Social Security with the workers' compensation claim; special paperwork needs to be done.
Additionally, Medicare is a critical benefit especially if the injured worker has other health conditions. A workers' compensation settlement can impact Medicare rights, therefore, your attorney must understand how to prepare the proper paperwork that Medicare will approve.
Structured Settlements / Medicare Set Aside Trusts
If you are on Social Security Disability and/or you are a Medicare beneficiary, then a Medicare Set-Aside Trust (MSA) would be required before you settle your case by Compromise and Release. The workers' compensation insurance company would obtain a MSA from a company who prepares them. Then that MSA would need to be submitted to CMS (the third-party agency that Medicare uses to address these issues). The MSA company would need all medical records from your workers' compensation case in the last two years, a prescription list from all pharmacies for the last two years, and a Social Security Administration release.
Special Needs Trusts
If a client is on Medi-Cal, public assistance, welfare, or any other benefit which is dependent on income and assets, a Special Needs Trust may need to be set up in order to properly settle a workers' compensation case.
Pre-Existing Conditions Combined With Spinal Cord Injuries
If a client has a spinal cord injury, that injury alone does not limit them from having a productive future at work. However, in some cases, the injured worker has pre-existing injuries, health conditions, anxiety, depression, and other disabling conditions that the worker could manage before the spinal cord injury. However, the spinal cord injury has put the client "over the edge" as far as ability to work in the labor market.
Basically, from a practical point of view when you combine the pre-existing problems with the spinal cord injury, the client cannot function in the open labor market. This doesn't mean that they can't live their life; it means they cannot compete in a competitive job market. There is a special type of workers' compensation claim called a Subsequent Injuries Benefit Trust Fund (SIBTF) claim and that type of claim is one your attorney should understand and consider in these situations.