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Overcoming Common Defenses In Traumatic Brain Injury Cases (Part II)

Insurance Coverage Sources

Trauma disrupts families. Paychecks stop coming in, friends and loved ones become caregivers, homes need to be modified, and medical care and rehabilitation need to be paid for. Anyone who represents seriously injured plaintiffs quickly learns that these immediate concerns often loom far larger in the lives of their clients than the prospect of a recovery that might occur a year or two down the road. Lawyers aren't social workers or life care planners, but they need to know the lay of the land - including the potential sources of benefits and coverage other than a wrongdoer's liability insurance.

For workplace injuries, workers compensation is almost always the first place to look. Most plaintiffs' lawyers look to attorneys who specialize in this complicated area of the law whenever workers' compensation issues arise. If you are not a workers' compensation specialist, one of your first phone calls should be to someone who is.

For cases involving the operation of a motor vehicle, applicable auto insurance invariably provides medical benefits. By law these benefits are supposed to be primary, meaning they are supposed to be paid before the patient's medical insurance (or Medicare or Medicaid) pay for care. Many auto policies have medical benefits measured in the thousands of dollars; these policies can be exhausted - meaning all available benefits are paid - with a single trip to the emergency room. Auto carriers are almost eager to pay these amounts and close their files on the claim. Filling out a single form, or simply providing the information to the hospital, is often all your client needs to do. But some policies have much higher medical coverage limits, measured in the hundreds of thousands or even in the millions of dollars. Here, you will need to be more actively involved in order to make sure these benefits are paid in a timely fashion. Hospital billing systems, in particular, seem designed to bill (and get paid by) health insurance companies and Medicare and Medicaid. Even the largest and most sophisticated hospital systems sometimes need to be reminded that first-party medical benefits should be exhausted before insurance, Medicare, and Medicaid are billed. This matters because Medicare, Medicaid and some forms of private health insurance have to be paid back out of any recovery from the wrongdoer who caused the accident. First-party medical benefits paid under an auto policy (usually) do not need to be paid back.

Under the Affordable Care Act everybody is supposed to have health insurance coverage. But we live in an imperfect world and some people do not. Thankfully, the Affordable Care Act's ban on preexisting conditions means that is a problem that can be remedied after an accident or injury occurs. At an absolute minimum this can occur during the annual enrollment period, although there are many triggers (such as loss of a job) that allow people to enroll in exchange plans outside of those normal enrollment periods. If the client cannot afford insurance premiums, Medicaid coverage should be available, at least in states that have pursued Medicaid expansion under the ACA.

Some clients have private long-term care insurance, which can often make a huge difference of the quality of life for more severe injuries.

Social security disability, and the Medicare coverage that can come with it in certain circumstances, are often available. This is a highly technical area of the law, and these issues are usually handled by lawyers who specialize in social security disability law.

There are also public programs, such as those offered through Pennsylvania's Office of Vocational Rehabilitation, that can provide invaluable (and at times irreplaceable) assistance to families working through traumatic brain injury. The best source of information for these programs is almost always people who work with this patient population on a daily basis. If your client is fortunate enough to be receiving care from an experienced brain injury facility, staff there will almost certainly have current information about these public programs and the services they can provide. From the attorney's standpoint, the best thing you can do is ensure an open channel of communication between these personnel and your client.

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