The American Academy of Neurology Recognizes – There’s Nothing Mild About Mild Traumatic Brain Injury

The American Academy of Neurology Recognizes – There’s Nothing Mild About Mild Traumatic Brain Injury

Like never before, the war in Iraq is focusing dialogue on brain injuries. The discussion has been prompted by the large number of casualties who have sustained such injuries and who have survived. Not only are troops experiencing penetrating trauma that often result in prolonged periods or unconsciousness or require brain surgery but they are also experiencing the type of head trauma caused by the concussive effect of explosions, particularly from roadside bombs known as IEDs (Improvised explosive devises).

In the July 3, 2007 of "Neurology Today" reporter Stephanie Cajigal highlights the epidemic of the so-called “mild traumatic brain injury” (MTBI) cases that occur each year in the United States. “Neurology Today” is a bi-weekly publication of the American Academy of Neurology. The article, entitled “Taking the ‘Mild’ Out of Mild Traumatic Brain Injury” also underscores the problems inherent in the word “mild” because for patients who do not recover from mild head trauma, there is nothing “mild” about the injury. By embracing the notion that “mild” does not mean “inconsequential”, the American Academy of Neurology will advance the way we deal with significant injuries, the majority of which occur as a result of car accidents and trip and fall or slip and fall accidents.

There is no consensus about how to define “Mild Traumatic Brain Injury”. In the Textbook of Traumatic Brain Injury (edited by Silver, McCallister & Yudofsky, published by American Psychiatric Publishing, Inc. 2005), Dr. Thomas McCallister listed more than eleven definitions from government sources and peer reviewed literature. There does appear to be a consensus that a concussion is a brain injury and that a patient will fall into the mild traumatic brain injury classification if there is either a short term loss of consciousness (<30 minutes) or a transient impairment of cognitive function. It is also widely known that many head trauma victims are never seen in a hospital and many such patients are treated and released despite suffering an injury that can have far reaching consequences impairing a host of cognitive functions including but not limited to problems with memory, attention and concentration, emotional control, irritability, and decision making.

The article urges neurologists to “be on the lookout” for symptoms of TBI and recognizes that the diagnosis may be challenging. Often such diagnostic tests as CT Scan, MRI, EEG are normal or negative but that is insufficient as a patient can have a brain injury despite negative diagnostic testing.

It is also common for a patient to fail to recognize lasting symptoms from head trauma that is classified as Mild Traumatic Brain Injury. While a majority a patients who sustain head trauma do not have lasting symptoms, nearly 80% of the head trauma population do experience permanent post concussion syndrome. As any of those patients will tell you, there is no good kind of brain injury.

CBIA - AN ENABLER OF DISCRIMINATION

CBIA – AN ENABLER OF DISCRIMINATION

It frequently happens that when the Connecticut Business and Industry Association (“C.B.I.A.” – and not to be confused with our Connecticut Brain Injury Attorneys “C-B-I-A”) issues a “Government Affairs Report” the content reveals an invidious bias against the ideal of “justice for all.” Today’s missive from the Business Association is no different.

On May 29, 2007, the U.S. Supreme Court issued its decision in Ledbetter. v. Goodyear Tire and Rubber Co., Inc. In Ledbetter, by the barest of majorities, the Court ruled that a woman who discovered that she was receiving unequal pay as compared to her male colleagues could not maintain her claim retroactive to the commencement of the discrimination under Title VII of the Civil Right Act of 1964. The Court held that the statute required that a complaint of discrimination be filed within 180 days of the discriminatory act and therefore the damages related to the earlier period of discrimination could not be addressed. The majority, that included conservatives Samuel Alito, Jr. and Chief Justice John Roberts, failed to explain how it was just to penalize Ms. Ledbetter for her inability to discover the longstanding discrimination that was alleged in her complaint when she did not know about it.

The CBIA has advocated communication with Congressional representative to oppose the “Ledbetter Fair Pay Act” (H.R. 2831) claiming that the legislation that has been passed by the House and is being considered by the Senate will not see the light of day. Of course, any legislation that is calculated to do justice for all will likely be the subject of a Presidential Veto and George W. Bush has threatened to Veto the legislation should it reach his desk.

The CBIA advances its opposition to the legislation because it believes that the Ledbetter decision forces the employee to report discrimination quickly and permits the employer to defend itself while “the evidence is fresh”. Unfortunately for workers victimized by discrimination, the Ledbetter decision is intellectually and pragmatically dishonest. For decades, the prevailing wisdom has permitted the application of Title VII to a course of discriminatory acts that were unknown to the victim thus holding accountable under the law the employer that has violated the law over an extended period of concealment. While all involved in the justice system recognize the advantages of dealing with evidence while it is fresh, when it comes to discrimination, the employer is in a uniquely advantageous position as it controls the evidence including payroll and personnel records. Thus, it is the employee that is at a disadvantage by the failure of the employer to reveal its pattern of discrimination.

The “Ledbetter Fair Pay Act” is an attempt by the Congress to level the playing field in discrimination cases. It is also an affirmation of the Congressional intent concerning the applicable statute of limitations. Remember, when a statute of limitations is used to deny a person a chance to have his or her case heard on the merits, it amounts to a denial of justice. Why should an employee lose out on a claim for discrimination based upon a 180 day notice requirement when one business can sue another business on a written contract 6 years after a breach of that contract? The “Ledbetter Fair Pay Act” will only prove costly to employers that have broken the law. Despite C.B.I.A.’s protests to the contrary, making the wrongdoers pay is the right way to go.

I urge you to write to your representatives and let them know that the Ledbetter bill should have their support.


Stewart M. Casper
Casper & de Toledo LLC
1458 Bedford St.
Stamford, CT 06905
Tel. (203) 325-8600
Fax (203) 323-5970
Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy
http://www.casperdetoledo.com