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Staying Ahead of Troubling Traumatic Brain Injury Trends

The need for a 'playbook' to manage the growing number of TBI claims is critical to achieving successful outcomes.
By: | December 14, 2016 • 5 min read

A new claim slides across an adjuster’s desk. The claimant suffered whiplash in a car accident, is reporting dizziness, headaches and blurred vision, and is alleging traumatic brain injury. He is seeking a life care plan to help him cope, which means more doctor visits, more tests, more treatments and higher claims costs.

Claims like this are becoming more and more common. Life care plans have always gone hand in hand with catastrophic traumatic brain injuries (TBI), where severe blows to the head left victims with decreased brain function. But TBI claims are now being asserted in less serious, non-contact accidents — like slips and falls and whiplash from fender benders — and plaintiffs’ attorneys are increasingly calling for life care plans to treat them.

“We’re seeing an uptick in allegations of traumatic brain injury and calls for extra care that drive up the cost of litigated claims,” said John Watkins, SVP, Complex Claims at Liberty Mutual Insurance.

Liberty Mutual’s John Watkins discusses the increase in both traumatic brain injury allegations and requests for life care plan in the complex claims management space.

Increased public awareness has helped drive up the frequency of TBI claims. The high-profile concussion lawsuit and settlement between former professional football players and the NFL, as well as publicized cases of chronic traumatic encephalopathy (CTE) have drawn attention to the dangers of TBIs. As public awareness rises, so do the number of allegations and claims.

“We saw a similar wave of claims connected to carpal tunnel syndrome,” Watkins said. “Back when that was something new, we saw an explosion of carpal tunnel claims. We’re now seeing a wave of TBI claims with the added component of life care plans. Again, our challenge is to identify legitimate claims and get people the appropriate treatment.”

The Subjectivity Problem

The subjectivity of brain injury symptoms makes them easy to claim, but difficult to verify. Dizziness, light-headedness, blurred vision, ringing in the ears and difficulty concentrating can be signs of a mild or moderate brain injury — temporary symptoms that can fade as the brain heals. Or, these symptoms could be indicative of a severe injury with lasting damage.

But with no way to objectively measure these symptoms, they are unreliable indicators of severity.

MRIs and CAT scans can typically detect internal damage and bleeding that would be associated with a severe TBI, but sometimes, brain damage may not be visually present. Instead, doctors conduct other tests to measure brain function and the impact of an injury. There is a wide degree of variability involved in these post injury tests and they may only tell a portion of the story. In many cases, a brain function test is not administered immediately after an injury, but several weeks or even months later.

Why traumatic brain injury claims can be challenging.

“Most individuals don’t have documented baseline tests of brain function and that makes it much more difficult to measure any changes after an injury. That’s why much of the time, a diagnosis is based on subjective symptoms like headaches, dizziness, or blurred vision,” Watkins said.

“The brain is a remarkable organ that is capable of healing itself,” Watkins said. “If someone has a concussion and experiences a marked decline in brain function months after an accident, that’s a sign to study that claim further.”

A Dedicated Claims Approach

Liberty Mutual takes a three-pronged approach to managing TBI claims and other complex claims.

First and foremost is staying on top of trends. Big Data plays an important role and helps to identify pockets where the claims experience is outside the norm. For example, if a number of TBI claims are concentrated in specific jurisdictions that could indicate that the uptick in frequency or severity may be driven by reasons other than broader market forces. These claims will require more thorough investigation.

How insurers can help risk managers with traumatic brain injury claims and control costs.

The second prong of the claims management approach is Liberty Mutual’s in-house medical staff.

“We made the conscious choice to invest in having doctors and nurses as part of our claims team. This medical expertise not only helps us on the workers compensation side, it also helps with TBIs and other complex liability claims. Our regional medical directors and nurses know what questions to ask and if the recommended treatment follows evidence-based guidelines. They can respond to any questions our claims adjusters have in the moment, which enables us to address claims more efficiently,” Watkins said.

The third prong of Liberty Mutual’s approach is its dedicated complex claims team. Adjusters specialize in these types of claims and receive advanced training in TBIs so they know how to recognize them early on.

Liberty Mutual has also created an internal traumatic brain injury “playbook,” which helps adjusters understand the injury, symptoms, and how to manage these claims so that they can have productive discussions with treating medical professionals.

LM_SponsoredContent“We saw a similar wave of claims connected to carpal tunnel syndrome. Back when that was something new, we saw an explosion of carpal tunnel claims. We’re now seeing a wave of TBI claims with the added component of life care plans. Again, our challenge is to identify legitimate claims and get people the appropriate treatment.”

— John Watkins, SVP, Complex Claims, Liberty Mutual Insurance

“From our experience we know that early intervention is critical to driving better outcomes for injured people. The first thing an adjuster will do is check for that baseline test. We may be able to get earlier MRIs or brain function tests from the claimant’s medical records. Now, many schools require baseline brain function tests of student athletes, so as the population ages, these early baselines records will become more and more common,” Watkins said.

An adjuster may also request a recorded statement from the claimant soon after the injury that details what symptoms he or she is experiencing. This statement can act as a baseline if there is no brain function test or MRI on record.

Liberty Mutual’s claims staff works hand in hand with its medical experts. Round table discussions give both teams the opportunity to talk through cases and develop action plans. These interactions, paired with additional training and internal resources, enable adjusters to develop expertise in niche areas where trends are developing.

“When our adjusters are cognizant of the trends, follow the playbook and utilize the expertise of our medical staff, we derive better outcomes,” Watkins said. “Our goal is to ensure that that each claimant receives the appropriate care and treatment plan he or she deserves.”

To learn more about Liberty Mutual, visit https://business.libertymutualgroup.com/business-insurance/claims-overview.

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This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Liberty Mutual Insurance. The editorial staff of Risk & Insurance had no role in its preparation.








Liberty Mutual Insurance offers a wide range of insurance products and services, including general liability, property, commercial automobile, excess casualty, workers compensation and group benefits.

More from Risk & Insurance

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Absence Management

Establishing Balance With Volunteers

It’s good business to allow job-leave for volunteer emergency responders, whether or not state laws apply.
By: | January 10, 2018 • 7 min read

If 2017 had a moniker, it might be “the year of the natural disasters,” thanks to a phenomenal array of catastrophic or severe events— hurricanes, tornadoes, wildfires, ice storms and floods.

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Combined with smaller-scale fires and other emergencies, these incidents tax the resources of local and state emergency services, often prompting the need to call volunteer emergency responders into action.

But as lean as most organizations are already running, volunteer activities can sometimes cause friction between employees and employers. Handling conflicts the wrong way can potentially lead to legal headaches, harm employee morale and batter a company’s reputation.

State by State Variations

Most employers are aware of the various federal and state leave laws protecting their employees, including family and medical leave, pregnancy leave and military leave. But leave laws that protect the livelihoods of volunteer emergency responders are more likely to fly under the radar of some HR managers and risk managers.

Such laws don’t exist in every state, but more than 20 states do have some type of law in place to protect volunteers including emergency responders, firefighters, disaster workers, medical responders, ambulance drivers or peace officers.

Marti Cardi, vice president of Product Compliance for Matrix Absence Management

The laws vary broadly. Nearly all specify that such leave be unpaid, and that employees disclose their volunteer status to employers and provide documentation for each leave. But there is a spectrum of variations in terms of what may trigger an eligible leave. Some, for instance, apply for any emergency that prompts a call from the volunteer’s affiliated responder group. Others may require a government declaration of emergency for the law to be triggered.

While many of the laws do not explicitly require employers to let employees leave work when called to an emergency during a shift, most specify that an employee may be late or even miss work entirely without facing termination or any other adverse employment action.

Some states mandate a maximum number of unpaid leave days that a volunteer can claim. But others may place more significant burdens on employers. In California, for instance, employers with 50 or more employees are required to grant up to 14 days of unpaid leave for training activities in addition to any leave taken to respond to emergency events. For multistate employers, keeping on top of what obligations may apply in each circumstance can be a challenge.

Significant Risks

Large or mid-sized employers may rely on absence management providers to keep them in compliance. For smaller employers though, it may be as simple as looking up a state’s law via Google to find out what’s required. However, checking in with the state department of labor or the company’s attorney may be the best way to get the correct facts.

“I would caution that just because you don’t find something [on the internet], it doesn’t mean it’s not there,” said absence management and employment law attorney Marti Cardi, vice president of Product Compliance for Matrix Absence Management.

For example, Cardi said, an obscure Texas law provides job-protected leave for volunteer ham radio operators called into service during an emergency.

Cardi said employers should task HR to investigate the laws in each state the company operates in, and to ensure that supervisors are educated about the existence of these laws.

“If a supervisor is told by one of his or her employees, ‘Sorry I’m not coming in today … I’ve been called to volunteer firefighter duty for the [nearby region] fire,’” she said, you want to be sure that the supervisor knows not to take action against the employee, and to contact HR for guidance.

“Training supervisors to be aware of this kind of absence is really important.”

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An employer that does terminate a protected volunteer for responding to an emergency may be ordered to pay back wages and reinstate the employee. In some cases, the employee may also be able to sue for wrongful termination.

And of course, “you don’t want to be the company in the headlines that is getting sued because you fired the volunteer firefighter,” she added.

If an employer bars a volunteer from responding, the worst-case scenario may be a third-party claim. Failure to comply with the law could give rise to a claim along the lines of “‘If you had complied with your statutory obligation to give Jane Doe time to respond, my loved one would not have died,’” explained Philadelphia-based Jonathan Segal, partner at law firm Duane Morris and managing principal of the Duane Morris Institute.

“That’s the claim I think is the largest in terms of legal risk.”

Even if no one dies or is seriously injured, he added, “there could still be significant reputational risk if an individual were to go to the media and say, ‘Look, I got called by the fire department and I wasn’t allowed to go.’”

The Right Thing to Do

What employers should be thinking about, Segal said, is that whether or not you have a legal obligation to provide job-protected leave for volunteer responders, “there’s still the question of what are the consequences if you don’t?”

Employee morale should be factored in, he said. The last thing any company wants is for employees to perceive it as insensitive to their interests or the interests of the community at large.

“Sometimes employers need to go beyond the law, and this is one of those times,” — Jonathan Segal, partner, Duane Morris; managing principal, Duane Morris Institute

“How is this going to resonate with my employees, with my workforce, how are people going to see this? These are all relevant factors to consider,” he said.

There’s an argument to be made for employers to look at the bigger picture when it comes to any volunteer responders on their payroll, said Segal.

“Sometimes employers need to go beyond the law, and this is one of those times,” he said. “Think about the case where’s there’s not a specific state law [for emergency responders] and you say to a volunteer, ‘No, you can’t leave to deal with this fire’ and then people die. You as an employer have potentially played a role, indirectly, because you didn’t allow the first responder or responders to go,” he said.

The bottom line is that “it’s the right thing to do, even if it’s not required by law,” agreed Cardi.

“I feel that companies should have a policy that they’re not going to discipline or discharge someone for absences due to this kind of civic service, subject to verification of course.”

Clear Policy

While most employers do strive to be good corporate citizens, it goes without question that employers need to guard their own interests. It’s not especially likely that volunteer responders will try to take advantage of the unpaid leave allowed them, but of course, it could happen.

That’s why it’s important to have policies that are aligned with state laws. Those policies could include:

  • Notifying the company of any volunteer affiliations either upon hire or as soon they are activated as volunteers.
  • Requiring that employees notify a supervisor as soon as possible if called to an emergency (state requirements vary).
  • Requiring documentation after the event from the head of the entity supervising the volunteer’s activities.

If at some point it becomes excessive – someone has responded to emergencies five times in nine weeks, then it’s time to examine the specifics of the law and have a discussion with the employee about what’s reasonable, said Segal. It may also be time to ask specifics about whether the person is volunteering each time, or are they being called.

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In some cases, the discussion may need to be about finding a middle ground, especially if an employee has taken on an excessively demanding volunteer role.

“We encourage volunteers to pick the style that best fits their schedule,” said Greta Gustafson, a representative of the American Red Cross. “Disaster volunteers can elect to respond to disasters locally, nationally, or even virtually, and each assignment varies in length — from responding overnight to a home fire in your community to deploying across the country for several weeks following a hurricane.

“The Red Cross encourages all volunteers to talk with their employers to determine their availability and to communicate this with their local Red Cross chapter.”

Segal suggests approaching it as an interactive dialogue — borrowing from the ADA. “Employers may need to open a discussion along the lines of ‘I need you here this week because this week we have a deliverable on Friday and you’re critical to that client deliverable,’” he said, but also identify when the employee’s absence would be less critical.

No doubt there will be tough calls. An employer may have its hands full just trying to meet basic customer needs and need all hands on deck.

“That may be a situation where you say, ‘First let me check the law,’” said Segal. If there’s a leave law that applies, “then I’m going to need to comply with it. If there’s not, then you may need to balance competing interests and say, ‘We need you here.’” &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]