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Secondary Service Connection for Diagnosable Illnesses Association with Traumatic Brain Injury

I have previously reported on the BIAA white paper authored by Brent Masel, M.D. describing traumatic brain injury as a chronic disease.  The Federal Register has published a proposed rule of the Department of Veteran Affairs (VA) which is proposing an amendment to its adjudication regulations concerning service connection.  The amendment ,according to the summary of the rule, states,“this amendment is necessary to act upon a report of the National Academy of Sciences, Institute of Medicine, Gulf War and Health Volume 7: Long-term consequences of traumatic brain injury regarding the association between traumatic brain injury and five diagnosable illnesses.  The intended effect of the amendment is to establish that if a veteran who has a service-connected TBI also has one of these diagnosable illnesses, that that illness will be considered service connected as secondary to the TBI.  
 
The five diagnosable illnesses are: Parkinsonism; dementias (which includes:  (a) pre senile dementia of the Alzheimer type and (b) post-traumatic dementia); depression (also associated with mild TBI), and diseases of hormone deficiency that may result from hypothalamo-pituitary changes.   
A copy of the proposed rule change can be found here.
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Florida Court finds PET Scan Satisfies Frye Requirements

Previously, a Florida Court in the matter of Gammad v. ATP Agri-Services, Inc., held a Frye Hearing to determine the admissibility of a SPECT scan. Apparently, defendant had previously filed a motion to bar the admissibility of the SPECT scan. Judge Barton, in a prior Order, dated September 22, 2010, found that SPECT was not new or novel science, and that plaintiffs had demonstrated that the basic underlying principles of SPECT imaging had been sufficiently tested and accepted by the relevant scientific and medical communities. 

On April 19, 2012, testimony was taken in the District Court with regard to the admissibility of the SPECT scan. By Order dated May 3, 2012, Hon. Don T. Hall, acting Circuit Judge for the Circuit Court of 12th Judicial Circuit in and for Desota County, Florida, entered an Order denying defendant’s Frye challenge to the admissibility of SPECT. 

 

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Making Employment of People with Disabilities a National Priority

We have known for quite some time the effect that physical and mental disabilities can have on one’s ability to actively and gainfully participate in the labor force.  I have reported quite often on studies and cases involving persons with traumatic brain injury and the effect that has on one’s earning capacity.  I have just had an opportunity to review the report of the United States Senate, Committee on Health, Education, Labor, and Pensions (Tom Harkin, Chairman) in a study entitled: Unfinished Business:  Making Employment of People With Disabilities a National Priority.

Senator Harkin’s Committee looked at the state of unemployment for people with disabilities.  Despite the passage of the Americans With Disabilities Act (ADA), “there is no evidence that employment outcomes for people with disabilities as a whole have improved since 1990.” Citing studies from Yelin and Trupin 2003 and Houtinville, et al., 2009, the study finds that “employment outcomes among people with disabilities have been persistently lower than employment outcomes among people with disabilities.  In 1988, while Congress was working on the ADA, the National Council on Disability noted that the 1980s census showed that only 32% of working age people (16-64) with disabilities were working at that time. Today, 30 years later, the United States has had great difficulty moving beyond a 33% employment rate for Americans with disabilities. 

Looking at studies in the US Bureau of Labor Statistics, June 2012, one sees that for working age adults without disabilities, the labor force participation rate was 77.7%.  Yet, for working age people with disabilities, the participation rate was only 32.1%.  People with disabilities participate in the workforce at a rate far lower than any other group tracked by the US Bureau of Labor Statistics.

The Committee, in looking at the effect of all Americans harmed by the 2008 recession, the Committee found that workers with disabilities have been affected more dramatically and have been slower to rebound than those without disabilities.  By December 2010, the non-disability work force had dropped approximately 2.1% while during that same period the working-aged disability labor force dropped by approximately 10.4%.  “In other words, workers with disabilities left the labor force during the Great Recession at a rate five times faster than workers without disabilities.” (BLS, 2012, the employment situation, Table-6). 

The Committee also looked at the issue of underemployment as it affects both the disabled and non-disabled work forces.  Again, the Committee found that in addition to participating in the workforce at much lower level rate than person without disabilities, people with disabilities are more often under-employed than people without disabilities.  For example, when people with disabilities are employed, they are far more likely than their non-disabled peers to be employed part-time (BLS, 2011, persons with a disability:  labor force characteristics 2010).  In 2010, 32% of workers with disabilities were employed part-time, compared to 19% of the non-disabled peers (BLS, 2011, Table 2). 

The Committee also found that “despite similar education, those persons with disabilities who earn less on average than workers without disability.  In 2010, the median annual earnings for workers with disabilities ages 16 and older was $19,500.  For workers without disabilities that year the median annual earnings was $29,997. The median earnings for workers with disabilities is less than two-thirds the median wage for workers without disabilities (Disability Statistic and Demographics Rehabilitation Research and Training Center, 2011). 

This report continues to grow the ever increasing research and support for the proposition that those with disabilities have a shorter work life expectancy and earn less than their non-disabled peers.

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United States House of Representatives Moves to Eliminate The Agency for Healthcare Research and Quality

The Brain Injury Association of America has issued an important alert concerning potential legislative action on behalf of the United States House of Representatives that would eliminate The Agency for Healthcare Research and Quality which has produced important research on Traumatic Brain Injury.
 
The bill states that the agency would be "terminated" effective October 1, 2012. It would rescind all funds that haven't been spent yet, and would "transfer" activities that fall under the agency. That includes the U.S. Preventive Services Task Force, which has been at the center of controversies over prostate cancer screening and mammograms.

I urge you to act locally to defend critical research funding. Reach out to your Representatives and tell them that health services research and the Agency for Health Care Research and Quality must be protected.
 

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Senate Law & Public Safety and Budget & Appropriations Committees Introduce Bill That Would Increase Fines for Driving While Using a Cell Phone

The Senate Law & Public Safety and Budget & Appropriations committees released legislation that would increase fines and impose license suspension for talking or texting on hand-held device while driving. The bill, Senate Bill No. 69, would put in place a graduated penalty structure for repeat offenders who violate the state's hands-free cell phone law more than once in a ten-year period; a motor vehicle violation that, under current law, carries a $100 fine for first and subsequent offenses.

Also, first-time offenders would have to pay a fine of $200. Drivers convicted of a second offense within 10 years of the first would have to pay a fine of $400, and drivers convicted of a third and subsequent offenses within 10 years of the first would have to pay a fine of $600 and face driver's license suspension of up to 90 days. The fines would go towards a public information program about the dangers of texting while driving.

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New Jersey State Legislature encourages Congress and President to enact the Pediatric Acquired Brain Injury Plan Act

The New Jersey Legislature passed a resolution, which urges Congress and the President to enact the “National Pediatric Acquired Brain Injury Plan Act of 2011 (PABI).”  The goal of the PABI Plan Act is to provide a seamless, standardized, evidence-based system of care for families who have a child or young adult with a traumatic brain injury (TBI).

The Act would create a national network of 52 State Lead Centers of Excellence, one center in each state, the District of Columbia, and Puerto Rico, that would have responsibility for implementing the plan based on each state’s own unique demographics, geography, laws, infrastructure, and financing.

Additionally, The Act would provide for the entire continuum of care from prevention; treatment in acute medical facilities; reintegration back into schools, communities, and homes; and, ultimately, transition into a system of greater independent living to better assist people with brain injury.

 

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Indiana Supreme Court Ruled Psychologist Qualified to give Expert Opinion on Causation

The Indiana Supreme Court ruled this past week that a psychologist is qualified to testify on behalf of a plaintiff in a personal injury case as to the cause of a traumatic brain injury

Plaintiff was injured in a rear end collision, sustaining injuries to his neck and back. Plaintiff underwent a neuropsychological evaluation with Dr. Sheridan McCabe, a psychologist. The plaintiff had been experiencing headaches and memory loss since the accident, but had not been previously diagnosed with having sustained a brain injury. After reviewing the plaintiff’s medical records and his deposition, as well as interviewing the plaintiff and his wife, Dr. McCabe administered a battery of neuropsychological tests. Dr. McCabe opined thereafter that the plaintiff had “experienced a traumatic brain injury in the accident.” 

Three times during the litigation, defendant objected to Dr. McCabe testifying as an expert witness, each time challenging the admissibility of the psychologist’s testimony that plaintiff experienced a traumatic brain injury in the accident. After the jury returned a verdict in plaintiff’s favor, defendant appealed, contending that the trial court erred when it permitted the psychologist to testify that plaintiff had sustained a traumatic brain injury in the crash. On appeal, the Indiana Court of Appeals agreed, reversed, and remanded the case for a new trial. Bennett v. Richmond, 932 N.E. 2nd 704 (Ind. Ct. App. 2010), reh’g denied. The Indiana Supreme Court then granted transfer of the case. 

The Indiana Supreme Court acknowledged initially that “while there is little dispute that a psychologist may testify as to the existence of a brain injury, or the condition of the brain in general, the specific issue in the case was whether a psychologist or a neuropsychologist may testify as to the cause of a brain injury. “ The Court reviewed decisions from other jurisdictions, noting that the issue was one that had divided jurisdictions.

The Indiana Supreme Court, while disagreeing with the result reached by the Indiana Court of Appeals, agreed with the analysis that the Appellate Court took in deciding the issue.  The Supreme Court found the issue of whether a psychologist could testify had to be decided pursuant to Rule 702, which sets forth the criteria needed (knowledge, skill, experience, training, or education which would assist the trier of fact).   The Supreme Court noted that under Rule 702, there was no per se rule banning a psychologist from testifying as to the cause of an injury.

Defendant’s main objection was that Dr. McCabe, a psychologist, was not a “medical doctor” and therefore was not qualified to render an opinion as to causation.  The Court reviewed Dr. McCabe’s qualifications, as well as the methodology he used in reaching his conclusions that the accident was the cause of plaintiff’s brain injury.  The Court noted that Dr. McCabe had interviewed both the plaintiff and his wife, reviewed the plaintiff’s medical records, and deposition, and had conducted a series of tests.

The Indiana Supreme Court totally rejected the Court of Appeal’s conclusion that the psychologist was not qualified under Rule 702 in that in its ruling that “a psychologist who is not a medical doctor, but is otherwise qualified under Rule 702 to offer expert testimony as to the existence and evaluation of a brain injury is not qualified to offer his or her opinion as to its cause without demonstrating some medical expertise in determining etiology of brain injuries.”  Bennett, 932 N.E. 2nd at 709¬-10. 

In its decision, the Indiana Supreme Court noted, “we think that the Court of Appeal s imposed more stringent requirements on Dr. McCabe than are required under Rule 702.”  The Court found that Dr. McCabe had the requisite education, training, and knowledge to render the opinion and that his methodology was sound. 

Lastly, defendant argued that Dr. McCabe was not qualified to give the opinion as to causation because he was not a neuropsychologist, only a psychologist.  The Supreme Court found that although Dr. McCabe did not claim to be  a neuropsychologist, the Court noted that “even if we were to require under Rule 702 qualifications similar to those of a neuropsychologist to testify in this manner” that Dr. McCabe’s qualifications were sufficient to fall under the definition of a neuropsychologist.  The Court concluded by find that the trial court did not abuse its discretion in finding that Dr. McCabe was qualified to offer his opinion as the cause of plaintiff’s brain injury.

Finally, the Indiana Supreme Court rejected the Court of Appeals conclusion that even if Dr. McCabe were qualified to opine as to the cause of plaintiff’s brain injury,  his testimony lacked probative value because he did not testify regarding the mechanics of the accident or describe the force or speed of the impact.  Bennett 932 N.E. 2nd at 711.  The Indiana Supreme Court rejected this analysis. 

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Senate Education Committee Passes Bills to Boost New Jersey's Efforts to Protect High School Athletes From Brain Injuries

Last week, the New Jersey Senate Education Committee unanimously passed two bills (S-3053 and SR-74), which would boost New Jersey’s efforts to protect high school athletes from head injuries.

S-3053, sponsored by Senator M. Teresa Ruiz (D-Essex/Union), would require cheerleaders, and their coaches, to be included in the “student-athlete” head injury safety program, which is now required by law as of last year. This law made New Jersey the state with the most comprehensive concussion prevention and treatment program in the country.

SR-74, sponsored by Senator Codey (D-Essex), would urge school districts to implement a baseline cognitive testing program, which is designed to assist in measuring the post-injury condition of a student athlete who has sustained a concussion. The process includes performing a test on student-athletes at the beginning of a season that covers attention span, working memory, sustained and selective attention time, response variability, non-verbal problem solving and reaction time. The information is used to evaluate the severity of a head injury and whether or not an injured student is recuperating.
 
Both measures now head to the full Senate for a vote.

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Federal Regulation Will Prohibit the Use of Cell Phones for Commercial Drivers Throughout the Country

The Federal Motor Carrier Safety Administration (FMCSA) and The Pipeline and Hazardous Materials Safety Administration (PHMSA) have amended the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMR). These amendments will restrict the use of cell phones by drivers of commercial vehicles.

The hope is that the new rule will improve the safety on the Nation’s highways by reducing the use of cell phones and therefore reducing the number of auto accidents, and fatalities. The Agencies also implemented new driver disqualification sanctions for commercial vehicle drivers who fail to comply with the new Federal restrictions and who already have multiple convictions for violating a state law that restricts the use of cell phones while driving.

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New Jersey Appellate Court Upholds $1.44 Million Verdict for Economic Damages Following Traumatic Brain Injury

The New Jersey Appellate Court has upheld a June 2010 verdict I obtained on behalf of one of my clients who sustained a traumatic brain injury following a serious motor vehicle collision in Hunterdon County, New Jersey. At the time, of the incident, my client was an investment banker earning approximately $900,000 per year. At the time of trial, my client was earning approximately $1.4 million per year. 

It was our contention that as a result of the cognitive impairments resulting in permanent cognitive disability, my client would be forced out of the work force much earlier had he not sustained this injury.  In preparing and trying the case I retained vocational economic expert Anthony Gamboa, Ph.D., MBA, of Vocational Economics. Dr. Gamboa explained to the jury, that as a consequence of the permanent cognitive impairments following a mild traumatic brain injury, that although my client remained a high earner, that as a result of his disability he would be force out of the labor market much earlier than would have been expected.

The case involved claims against the New Jersey Department of Transportation as well as another co-defendant with whom plaintiff settled prior to trial. The case proceeded against the State of New Jersey, Department of Transportation.  The jury returned a gross verdict in the amount of $3.6 million dollars, which was reduced to $1.44 million, representing the 40% negligence the jury found against the State of New Jersey and its employee. 

The New Jersey Law Journal summarized the case as follows:


ECONOMIC DAMAGES ARE AFFIRMED THOUGH PLAINTIFF'S EARNINGS ROSE AFTER ACCIDENT
On Thursday, The Appellate Division let stand a $1.44 million award for economic damages from an auto accident even though the plaintiff's earnings climbed steadily after the crash. The panel rejected the defense contention that the jury should not have heard expert testimony on economic damages because plaintiff did not prove a loss of earning capacity. The expert used U.S. Census data showing that male workers of the plaintiff's age, with a professional degree and a cognitive disability, earn an average of 6 percent less per year and work an average of 7.1 fewer years than nondisabled counterparts. But as the plaintiff's robust earnings showed he did not suffer a "substantial" loss, he is ineligible for noneconomic damages against the state under the Tort Claims Act, the court said. A link to the appellate division decision can be found here