ASKING THE RIGHT QUESTIONS: A GUIDE FOR ATTORNEYS ON BRAIN INJURIES

Brain injuries are some of the most complex cases an attorney can encounter in workers’ compensation or personal injury. Unlike a broken bone or a cut, brain injuries aren’t always visible on scans, and symptoms can be subtle, inconsistent, or influenced by a variety of factors. Memory lapses, slowed thinking, fatigue, or mood changes may be reported, but the key is understanding which challenges come directly from the injury and which may stem from other circumstances. With the right questions and a structured approach, attorneys can navigate these cases confidently and effectively, ensuring that no detail is overlooked and that claims are thoroughly evaluated.

The first step is knowing the type and severity of the brain injury. Mild concussions may result in occasional memory lapses, slowed processing, or fatigue, even when imaging looks normal. Moderate or severe injuries can produce more noticeable cognitive and emotional challenges, affecting attention, problem-solving, decision-making, and even emotional regulation. Understanding the nature of the injury provides critical context for evaluating whether reported limitations align with the clinical picture and what type of recovery can reasonably be expected. For example, a client who struggles with multitasking or complex work-related tasks after a concussion may have limitations that are subtle but measurable through careful testing. Attorneys can ask questions that help clarify this, such as:

• “What specific tests were used to evaluate cognitive function, and why were these chosen?”

• “Which areas of cognition—memory, attention, processing speed, or executive function—were assessed?”

• “Did you administer all of the cognitive tests yourself? If not, how do you account for the nuances that can occur during testing?”

  
  

Even small details, like the testing environment or how the patient was engaged during assessments, can make a significant difference in interpreting results. Who administers the testing is especially important. When the evaluating doctor conducts the assessments personally, they can notice subtle behavioral nuances, such as hesitation, frustration, or signs of fatigue, that may reveal important information about the patient’s effort, motivation, or other factors like pain or cognitive compromise. If an associate, resident, or fellow conducts the testing instead, these observations may be missed, which can affect the accuracy of the evaluation and the interpretation of results. Ensuring that the evaluation is thorough and objective helps attorneys see the full picture and separate real limitations from unsupported claims or anomalies. It’s also helpful for attorneys to understand how subtle changes in mood, fatigue, or stress levels can influence performance during testing.

Symptoms themselves are not always straightforward. Complaints such as difficulty concentrating, slowed thinking, or fatigue may be influenced by stress, pain, sleep disruption, or pre-existing conditions. Observing patterns and consistencies—or inconsistencies, can provide valuable insight. Attorneys can explore this thoughtfully by asking:

• “Have you observed variability in performance that might indicate external influences?”

• “Do symptoms fluctuate depending on stress, pain, or fatigue?”

• “Have assessments been repeated over time to see if patterns emerge?”

• “Are there differences between structured testing and real-world functioning?”

  
  

Looking carefully for these patterns helps distinguish limitations caused by the injury from challenges related to everyday life, giving attorneys a clearer view of the client’s functional reality. Providing examples during deposition, such as asking the clinician how a specific task or work simulation was performed, can make the evaluation even more concrete and persuasive.

Another critical aspect is evaluating effort. Results are only meaningful if the patient gives full engagement during testing. Without adequate effort, it is impossible to know whether reported limitations reflect actual impairment. Attorneys can ask:

• “Were effort measures included to ensure results reflect the patient’s true abilities?”

• “How was the patient’s motivation or engagement assessed?”

• “If inconsistent effort was observed, how did it affect your conclusions?”

  
  

Checking effort ensures that conclusions are based on valid, reliable data rather than inconsistent performance or lack of engagement during testing. It also gives attorneys a better understanding of whether observed limitations are likely to persist in real-world tasks.

Recovery trajectory is another area worth exploring. Mild injuries often improve within weeks to months, but some individuals experience longer-lasting symptoms. Attorneys can evaluate whether reported limitations are supported by objective evidence and whether other factors might explain ongoing difficulties. Sometimes a re-evaluation is needed because the patient has improved or their functional abilities have changed over time. Understanding these updates can provide a more accurate picture of current limitations and help ensure that claims reflect the patient’s true abilities. Attorneys can ask questions such as:

• “What objective findings support your conclusions about functional limitations?”

• “Are there discrepancies between reported symptoms and observed performance?”

• “Could pre-existing conditions or external factors explain some or all reported difficulties?”

• “Has a re-evaluation been considered to account for improvements or changes in the patient’s condition?”

  
  

Even when imaging appears normal, structured testing, behavioral observations, and documentation of daily functioning provide essential insight. Asking these thoughtful, targeted questions allows attorneys to approach brain injury cases with clarity and confidence, separating evidence-based conclusions from assumptions.

At the heart of evaluating brain injuries is curiosity, careful attention, and strategic thinking. Attorneys who ask the right questions and rely on structured, evidence-focused evaluations are better equipped to navigate these complex cases. By combining diligence with a methodical approach, even the most challenging brain injury cases become manageable. Attorneys can feel empowered knowing that their strategy is grounded in facts, thoughtful analysis, and careful consideration of the client’s true functional abilities. With each question asked and every detail explored, attorneys gain clarity, build stronger cases, and help ensure outcomes that reflect the real impact of the injury.