Claims based upon mild or moderate closed head injury present unique challenges for the claimant’s attorney. Brain injuries frequently go undiagnosed for weeks or months. Months after an injury, perhaps long after other physical injuries have resolved, the claimant may complain that the effects of brain injury continue to impede a return to work and enjoyment of life. Despite the claimant’s complaints, the treating doctors may not acknowledge any limitations whatsoever from brain injury. Subtle brain injury may not be observable on common objective tests such as CT or MRI scans. Initially, the claimant’s attorney may have little more to work with than the claimant’s subjective complaints of headache, sensitivity to light, irritability, confusion, and/or difficulty concentrating. The claimant’s attorney may therefore have to assume a proactive role simply to confirm the very existence of subtle brain injury.
Documenting the closed head injury months after trauma will present its own challenges. Some legitimate closed head injuries will completely elude corroboration by diagnostic testing. Indeed, over fifty percent of all coma patients do not have observable defects on MRI or CT. Source: Greenfield’s Neuropathology, p. 209. Corroborating closed head injury maybe possible through functional brain scans or
neuropsychological testing, but, as discussed more fully below, this evidence is not without controversy.
This paper will analyze the medical and legal challenges unique to the presentation of the mild to moderate brain injury claim, and offer suggestions for how to best present such a claim.