Can a Brain Injured Worker Get Behavioral & Cognitive Therapy, Botox, Dry Needling, and Other Medical Care Covered?

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A college aged garden center worker was injured on September 2013 while working. He sustained a skull laceration and traumatic brain injury. Despite the continued denial and delay from the workers compensation insurance company to pay for his treatments, the Abrams Landau injury law team was able to win an initial Award of significant medical benefits and ongoing disability from work for this client. Two years later, after an evidentiary Hearing, the claimant/client was also awarded additional compensation benefits for injury to the cervical spine injury to his neck as a result of the work accident.

At this latest Hearing, the Abrams Landau law team was able to get this wonderful client additional benefits, including: prescriptions and reimbursements for Botox injections, dry needling, Cefaly device, behavioral/cognitive therapy, laser spine treatments and migraine treatments, as well as mileage claims for transportation to and from all this medical care.

doug landau
Standing in front of the sculpture of Justice at the United Stated Federal Courthouse in Alexandria, Virginia, injury lawyer Doug Landau notes that “Justice Delayed is Justice Denied.” In a case where a brain injured client had to go to court to get compensation for his medical doctors’ multidisciplinary approach, Landau has now won Awards for this client three times!

The Workers Comp insurance company was delaying and denying treatment to this young man. There were a number of doctors whose treatment needed to be coordinated and paid for in a timely fashion. The claimant treated for neurological follow up with the authorized treating doctor who saw the claimant for his post concussion syndrome with secondary headaches, cognitive problems, and cervicalgia. The treating neurologist opined that the claimant “requires a multidisciplinary approach, which includes Botox, for his chronic headaches.” He also recommended physical therapy, a Cefaly device and dry needling “to compliment his chiropractic care, which has been helpful for his neck pain.” The attending neurologist found that “if we are able to have the multidisciplinary approach to this problem, we might be able to make some progress.”

Some four years post-accident, the neurological specialist continued to treat the claimant for his traumatic brain injury related problems and found that the claimant had concentration problems, light sensitivity and headaches, as well as neck pain. He noted that the chiropractic treatment was very helpful, but that there was difficulty getting that approved by the employer’s workers comp insurance company, even though there was an Award Order issued by the Virginia Workers’ Compensation Commission. The doctor continued to recommend the Cefaly device that the claimant wears on his skull and Botox, despite the difficulties and delays presented by the WC insurance company and their defense lawyers.

Virginia Code § 65.2-603 obligates the employer and its carrier to pay for reasonable and necessary medical treatment causally related to the work injury. Where an authorized treating physician has prescribed specific medical treatment, the defendant employer and its insurer, not the employee, has the burden to prove by a preponderance of the evidence that the prescribed treatment is neither reasonable nor necessary. The appropriate standard for medical causation in workers’ compensation cases is “reasonable probability.” That is, that it is more probable than not that the condition resulted from the compensable injury.

The judge fully considered the credible testimony of the claimant and his witnesses, and found that the treatment administered by the treating chiropractic physician, upon the recommendation of the treating neurologist, provided the claimant much needed relief from his daily and constant symptoms following his head/brain/concussion, and neck injuries. The constant nature of the symptoms described by the injured worker appeared to be a daily struggle for some relief to portions of his day where the pain can be reduced, but never gone.

The claimant’s treatment with the treating chiropractic physician, including dry needling into the TMJ and thoracic spinal therapy all appear to help him. Having undergone dry needling for a torn muscle in his lower leg, workers’ compensation attorney Doug Landau can attest to how painful this treatment is, and how efficacious it can be. In other words, lawyer Landau states, “No one would undergo dry needling, which is done without anesthesia, unless they had a serious condition that was not amenable to treatment by other means!”

The judge ruled that the employer was responsible for a natural consequence that flows from the original injury, if it is a direct and natural result of the primary injury. The judge found that as a consequence of the claimant’s original injuries, he was having symptoms in his jaw and thoracic spine that were recommended to be treated with therapies by the treating chiropractic physician. Therefore, the defendants were responsible for the TMJ and thoracic treatments and therapies as recommended by the treating neurologist, to be performed and administered by the treating chiropractic physician. The defendants were found to be responsible for the bills claimed from the treating chiropractic physician and for his continuing care. The judge further found that the claimant met his initial threshold and that the requested Thoracic-spine MRI (of the middle of his back, where the ribs attach) was also the responsibility of the defendant employer and insurance company. The treating neurologist opined that the T-spine MRI is a useful tool in determining further treatment for the thoracic symptoms, and so it, too, was to be paid for by the defendant.

If you or someone you know has been injured as the result of an accident on the job or while working off site, and there are questions about what laws apply, please give us a call (703-796-9555) or email us at Abrams Landau, Ltd.