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Test Can Help Lawyers Prove Fatigue for Victims of Traumatic Brain Injury

August 29, 2008 by Steven M. Gursten

Fatigue is one of the most common symptoms that lawyers hear from clients who have suffered traumatic brain injury after an accident. In fact, 50-75 percent of people with traumatic brain injury report fatigue, and more than half of these people report fatigue as their worst symptom, according to the Journal of Head Trauma and Rehabilitation (Vol. 23, No. 1, 2008).

Still, many personal injury attorneys fail to adequately convey fatigue to insurance companies, defense attorneys and juries. That’s because fatigue can be so difficult for lawyers to prove. In this respect, fatigue is very similar to traumatic headaches, which are also quite common, and yet often completely ignored.

Fatigue testing — which can prove total disability from work and help lawyers document economic loss in automobile accident and other personal injury cases — should therefore be considered by lawyers representing clients who suffer from fatigue caused by traumatic brain injury.

Today, there are a number of well-established vocational tests that can help accident lawyers convey in a vivid, powerful and effective manner just how disabling fatigue can be.

One of the most common of these vocational tests is called the Universal Work Skills Evaluation (UWSE). The UWSE is a real-world work evaluation that can be ordered by a physical medicine and rehabilitation physician, occupational therapist or a vocational rehabilitation expert. The test usually takes place over a two-day period.

Universal Work Skills Evaluation Proves Macomb County Car Accident Victim Disabled from Employment

In a recent trial, a Macomb County, Michigan jury returned a verdict of $5.65 million to my client, who sustained a traumatic brain injury after being run over by a pick-up truck. Following the trial, the jury said that the evidence from the UWSE, showing the plaintiff’s difficulties and problems caused by fatigue, was critical to finding that he could not hold a job or return to competitive employment.

Here is a video of my client taking a Universal Work Skills Evaluation.

The results over a two-day period showed that my client’s production output started quite strong, but plummeted throughout the day. His physical pain and headaches increased as well — another common problem of people who suffer from traumatic fatigue. On the second day of testing, his output was even lower.My client’s experience with fatigue is consistent with medical literature, as noted by Dr. Muriel Lezak, author of “Neuropsychological Assessment.”
Lezak writes:
o Easy fatigability can be a chronic problem, and many brain damaged patients are fatigued most of the time.
o Once fatigued, they take longer to recuperate than normal persons.
o Some patients get fatigued so quickly that they can only work for brief periods.
o Depression and frustration are often intimately related to fatigue in brain damaged patients.

Traumatic Brain Injury Lawyers Must do a Better Job for Clients

Fatigue testing, such as a Universal Work Skills Evaluation, is still not widely used for victims of traumatic brain injury, although it’s used all the time in other settings. For example, work try-outs, measuring production rates and quality and other types of vocational testing like UWSEs all have a long and very established history in vocational rehabilitation. And these tests are now used widely in business employment settings and the field of industrial psychology. UWSEs are also routinely administered in sheltered workshops, where developmentally limited workers are paid a deviated wage based upon discrepancies in their production numbers against the normal standard.

With that, the point bears repeating: Fatigue, as evidence of vocational disability, can vividly demonstrate a person’s real-life functional difficulties due to fatigue from brain injury and chronic pain syndrome. It can be far more persuasive than many other types of evidence, such as neuroimaging, in securing economic loss damages.

As lawyers, we owe it to our clients to try to demonstrate how real and disabling the effects of traumatic brain injury can be.

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One Reply to “Test Can Help Lawyers Prove Fatigue for Victims of Traumatic Brain Injury”

  1. Utilizing the UWSE to document fatigue in TBI cases is an excellent, if not revolutionary, idea. Attorney Gursten has set a new gold standard for the documentation of fatigue in all traumatic brain injury cases. He has done a wonderful thing for his client with the verdict. He has done a wonderful thing for all victims of brain injury that suffer from severe fatigue. No longer will this complaint be some untangible, subjective symptom. Finally, Attorney Gursten, through the sharing of this information, has done a wonderful thing for all other TBI advocates and for that, we owe him our deepest gratitude.

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