September 2014 is national Traumatic Brain Injury (TBI) Awarement month, a good time to consider TBI in North Texas and how the results of a traumatic brain injury may or may not support a claim for social security disability benefits. TBI is defined as a “nondegenerative, noncongenital insult to the brain from an external mechanical force, possibly leading to permanent or temporary impairment of cognitive, physical, and psychosocial functions, with an associated diminished or altered state of consciousness.” Traumatic brain injury usually results from a violent blow or jolt to the head or body.
The Dallas Fort Worth Texas region is fortunate in having top notch TBI assessment, treatment and rehabilitation resources. Both Parkland Memorial Hospital in Dallas County and John Peter Smith Hospital in Tarrant County are level 1 trauma centers. According to a Stanford University study, being treated at a Level I Trauma Center increases a seriously injured patient’s chances of survival by an estimated 20 to 25 percent. Among the requirements for a level 1 trauma designation are state-of-the art equipment and facilities, treatment of a high volume of trauma patients (i.e., experience) and 24-hour availability of the full range of surgeons and treating specialists. Both UT Southwestern Medical Center and Baylor Institute for Rehabilitation (BIR) participate in a multi-year study and treatment program funded by the National Institute on Disability and Rehabilitation Research. No one wants to sustain a traumatic brain injury, but if you do, Dallas Fort Worth is a good place to be.
TBI can have a wide range of physical, sensory, and cognitive symptoms such as:
• Loss of consciousness for a few seconds to a few minutes
• No loss of consciousness, but a state of being dazed, confused or disoriented
• Nausea or vomiting
• Fatigue or drowsiness
• Difficulty sleeping
• Sleeping more than usual
• Dizziness or loss of balance
• Blurred vision
• Ringing in the ears
• Bad taste in the mouth or changes in the ability to smell
• Sensitivity to light or sound
• Cognitive or mental symptoms
• Memory or concentration problems
• Mood changes or mood swings
• Feeling depressed or anxious
• Convulsions or seizures
• Dilation of one or both pupils of the eyes
• Clear fluids draining from the nose or ears
• Inability to awaken from sleep
• Weakness or numbness in fingers and toes
• Loss of coordination
• Cognitive or mental symptoms
• Profound confusion
• Agitation, combativeness or other unusual behavior
• Slurred speech
• Coma and other disorders of consciousness
The brain is wondrous in its ability to recover and “re-wire”, and scientists are learning that we have underestimated its “plasticity”. A key feature in considering how a TBI-based disability claim is assessed is the so-called “duration requirement”. To be found disabled, an individual must be unable to engage in any substantial gainful activity (SGA) by reason of a medically determinable physical or mental impairment(s) which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of at least 12 months. TBI is often an acute disability, and with quality medical care and rehabilitation, may not be disabling for 12 months or more. One significant issue for those who have recently sustained a TBI and cannot work is whether to file a claim for social security disability, not knowing if they will recover within 12 months. The problem with waiting for year to file for social security disability is that the path to approval is usually a year or more. Therefore, it sometimes makes sense to file a claim for TBI-based social security disability within 12 months of the injury. If one recovers sufficiently to return to work within 12 months the social security disability claim can simply be dropped.
A key feature of all social security disability claims is a determination of the claimant’s “residual functional capacity” (RFC). Put simply, this is the functionality the TBI patient retains with good medical treatment and care. A determination of disability given a specific RFC is dependent on age and education: generally, those under 50 years of age must prove inability to do simple, unskilled work, even if they may have previously enjoyed skilled and highly paid work. Social Security Rulings 85-15 and SSR 96-9p both describe how an individual must, on a sustained basis, be able to understand, remember and carry out simple instructions; make simple work-related decisions; respond appropriately to supervision, co-workers, usual work situations and to deal with changes in a routine work setting to do unskilled work. Therefore, these functions must be absent for those under 50 years of age to secure social security disability benefits.
TBI victims over 50 years of age with a limited education are more likely to qualify for social security disability by only proving they are not able to return to any of the work performed in the prior 15 years.