Legal Panel: Avenues to Pursue if a Brain Injury Survivor Has Challenging Legal Issues
Muhammad Adil 2026-03-31T06:53:11+00:00 March 26th, 2026|Blog|
By Eliza Marie Somers

Brain injury survivors and their families possess legal rights; however, many survivors don’t know about these rights or about resources that are available through federal and state government agencies.
To help survivors and their families, the Brain Injury Hope Foundation (BIHF) gathered a team of experts for its March 13, 2026, Survivor Series – Legal Panel: Avenues to Pursue if a Brain Injury Survivor Has Challenging Legal Issues.
Attorney Rebecca Albano, who is a BIHF board member, had her first TBI case in 2007 when it was even more difficult to prove to juries that brain injuries have serious consequences.
“There’s been a lot of mentions throughout this conference on the invisibility of the injury and the challenges associated with that,” Albano explained. “When I first litigated these cases, we could not get an insurance company to offer anything on these. It was like … it wasn't real, it was fake. It was horrible.”
“It became clear that it was an injury that was really underrepresented in terms of lawyers, who were willing to take the cases on,” Albano added. “Lawyers who were willing to give the time and the patience that it took to be the counselor part of the lawyer role. A lot of lawyers don't have the patience for it. And so over the years, it just was something that I had a lot of passion for, and I think it's just something that jurors have a lot of passion for because whenever I choose a jury and I ask, how many here have known someone or been affiliated with this injury, the entire pool raises their hand.”
However, having a jury pool that knows about TBI doesn’t mean going to trial against insurance companies is a victory in hand. Clients need to decide whether to risk going to court or taking a settlement, and they have to be aware that they will have to pay court costs if they lose, according to Colorado law.

Attorney Rebecca Albano says it’s important for clients to understand the extent of their injuries before settling with an insurance company.
“I think we in Colorado have a very good set of laws, judges, etc., to try to help folks who are injured,” Albano said. “But I also would say the system is still very difficult, especially for folks navigating a TBI. And not every case is a trial, meaning there might be risks associated with that case that I would tell the individual, ‘Hey, look, I think this is a risky case because I think the jury might not side with you, or something like that. And the reason for that is, is we are a loser-pays-cost state.”
Albano also helps her clients “navigate the systems of care. … We have been through this system so much. I can say, ‘Look, I think that you need to see your physician and outline these items, because when I'm talking with you, I'm noticing these few things.”
“We represent (clients) through the entire process in terms of the pre-litigation, meaning we're trying to work through their claim with the insurance company to try to get them compensated for lost wages and medicals, and all of those types of things. And then through trial, if that's where it leads.”
“But the main thing is, is making sure that (the client) understand the process … You know, I think that people get confused about what benefits are available, or what coverages are available. In Colorado, not everybody driving around on the road is carrying a million dollars in coverage, despite what we see on TV during daytime television.”
Almost immediately after an injury a TBI survivor may start getting phone calls and letters from insurance companies seeking information that might not be in the survivor’s best interests. An example is third party (not first party) insurance companies will ask for a medical release form, and as Albano noted this can allow an insurance company to get access to all of your medical records, for sometimes an indiscriminate period of time that they don't get under Colorado law.
“They may not have access to those full records,” Albano said. “You have to be careful in terms of phone calls, and the urgency in terms of resolving the claim. Sometimes insurance adjusters will say, ‘Oh, we're closing your claim.’ Well, they can't close your claim unless you're beyond the statute of limitation. They don't have the power to say, ‘Oh, you don't have a claim.”
Insurance companies also will try to settle claims early after an injury, and Albano cautions that the offer might look generous, but what the survivor might not realize is that you might have to pay your health insurance company back from your settlement.
“It’s also extremely important to understand the extent of your injuries,” Albano said. “You may have a long-lasting injury, and if you do sign on that line, that's it. You're out of luck. There's nothing, most of the time, that we can do for you in terms of moving forward. So, proceed with caution, take time, don't rush to any judgment in terms of how to proceed. You just need to make sure that you understand your rights.”
The legal process is not an easy task to undertake, especially after a person suffers a brain injury. It can involve a deposition, interrogatories, requests for admission and production of documents, mediation, and eventually a trial, which can range from three to 12 days. The whole process can take 12 months to up to two to three (or more) years.
“It can be an exhausting and difficult process for an injured person,” Albano said. “Especially in a complicated case. … it is incredibly hard financially, emotionally, and everything in between in terms of, of trying to survive it.”
“The best advice that I can give is to just take it one step at a time and surround yourself with supportive folks, and try to plan ahead as best you can.”
Attorney Rebecca Albano can be reached at 303-815-1592 or https://www.lawofficealbano.com
Social Security Disability Insurance
Panelist James Noel specializes in disability claims with an emphasis on Social Security disability cases.
“Social Security disability (SSDI) is an insurance program that we're all paying into,” said Noel, who has been practicing disability law for about 40 years. “I specialize in mental impairments, which is what Social Security uses a lot, or neurological impairments. They're interesting to me.”
“I'm sure we've all heard this before, you look OK. But it's really not judging a book by its cover. What we do is we look at the neurological findings, the cognitive findings, and that kind of thing in terms of whether the individual can sustain a full-time job. That's pretty much the criteria for Social Security disability.”
https://www.ssa.gov/benefits/disability/qualify.html

Attorney James Noel, who specializes in Social Security Disability Insurance, patience and persistence is needed when applying for SSDI.
Noel explained SSDI is for impairments that last a period of longer than 12 months and prevent the person from sustaining full-time employment. Supplemental Security Income is another Social Security program for the disabled, and it is a welfare needs-based program. https://www.ssa.gov/ssi/eligibility
To apply for SSDI takes a bit of supporting evidence paperwork from medical diagnosis and test results to daily activities or Activities of Daily Living, which requires filling out a 10-page Function Report. https://www.ssa.gov/forms/ssa-3373-bk.pdf
“A function report is, who does the laundry, the shopping, the cooking, the cleaning, the driving, etc. the more ADLs you do, it kind of hurts your case,” Noel explained. “So, it's often helpful to have a spouse or a friend or a relative complete a function report, and describe your difficulties in performing the activities of daily living. They need to be consistent when they're finding a disability.”
The gold standard in medical evidence in brain injury cases is neuropsychological testing, which can take up to eight hours. The test includes a comprehensive evaluation of cognitive, behavioral, and emotional functioning, designed to map brain-behavior relationships. It involves standardized tests to measure memory, attention, executive function, and language. https://www.viennapsychologicalgroup.com/what-conditions-do-neuropsychologists-evaluate/
Physical limitations also are considered for SSDI cases, and add validity to a person’s case.
“With physical injuries, we always look at the ability to sit, stand, walk, lift, carry, push, pull. Those are the basic exertional demands of employment, according to Social Security,” Noel said. “And in order to prevail in a case, you've got to have those down pretty low, certainly below eight hours a day, five days a week, or equivalent work schedule.
“The mantra here is whether the individual can engage in full-time employment.”
Noel also noted that age is a contributing factor in accessing SSDI benefits.
“I want to get to age, age, and age -- you know, how real estate guys say, location, location, location. The older you are, the easier it is to get disability. The two points are age 50 and age 55,” Noel explained. “Being an old guy, I know you can't teach me new tricks, and that's kind of what happens with the medical vocational guidelines. But if you get to your full retirement age (generally 66 or 67), you're already getting what Social Security can offer as disability.”
Now that a client has completed all the paperwork, it can take up to 10 months or even a few years to get enrolled in SSDI.
“I need to caution people that they're taking about eight to 10 months to make an initial decision at the Colorado Disability Determination Services. And unfortunately, 60 percent of those cases are denials,” Noel explained. “Then you go to something called reconsideration, which is another six to eight months in the process. And if you submit new evidence, you may get a reversal and an allowance of benefits. But it's really pretty hard to get into that reconsideration. About a 20 percent chance there. And from there, you get your due process. You go on to your administrative law judge.”
However, during the Survivor Series panel discussion news sources reported that Social Security changed its determination process by transitioning the processing of medical Continuing Disability Reviews from State Disability Determination Services to the SSDI federal processing site, Disability Case Review. From the Social Security Administration https://www.ssa.gov/news/en/advocates/2026-03-12.html and https://content.govdelivery.com/accounts/USSSA/bulletins/40df010
- More news concerning recent change
- https://www.womansworld.com/life/money/social-security-just-changed-disability-reviews-heres-what-it-means
- https://www.newsweek.com/social-security-announces-big-change-impacting-millions-11669902
- https://www.nickortizlaw.com/ssa-announces-change-to-continuing-disability-reviews/
If you are concerned about costs to hire an attorney for your SSDI case, Noel and most SSDI attorneys take cases on a contingency bases, and attorneys get paid by fee agreement that is heavily regulated by Social Security.
“Attorneys can charge a contingent fee, 25 percent of past due benefits, and there's a $9,200 cap on the contingent fee. Clients don't need any upfront money to engage a lawyer,” Noel explained.
Attorney James Noel can be reached at 303-761-2322 https://noel.law/
- For more information on benefits for TBI survivors see a previous BIHF Survivor Series, which includes help from Ability Connection Colorado with educational opportunities and housing benefits.
Inside a Courtroom
District Judge H. Clay Hurst, 18th District Arapahoe County, joined the BIHF Survivor Series to give TBI survivors and caretakers a glimpse inside a courtroom. Judge Hurst, who has been on the bench for almost 14 years, has been involved in family law, juvenile, probate, trusts and estates, and civil matters.
“I deal with guardianships, conservatorships, all of the mental health cases in the district that I work in. I do trust in estates,” Judge Hurst said.
“In Colorado, a guardianship is, after being proven by clear and convincing evidence, the court can appoint a guardian to take over the decision-making and responsibilities for someone incapacitated,” Judge Hurst explained. “That means a person unable to effectively receive or evaluate information, or both. Or they may not be able to communicate what they want or need to the extent that it impacts their physical health, safety, and welfare.”
“It's a little bit higher standard to be a guardian than it is a conservator. A conservator is focused on how to manage people's money, and to make sure they're not taken advantage of, or they're not wasting or dissipating what they have earned.”
District Court Judge H. Clay Hurst works with guardianships and conservatorships.
The judge gave an example of a person who worked all their life and after a serious accident the person is unable to evaluate the things that go into running an estate, such as paying bills on time, and they're susceptible to being taken advantage of by family, friends or neighbors or even on social media.
Judge Hurst said he evaluates cases by talking with family members and gauging medical records, especially if a family comes to court without attorney representation.
“What I've learned is the ability to analyze the neuropsych testing, the information that's provided by court personnel that go out to visit, by looking at doctor letters, and then just having a general discussion with the people,” he said. “Oftentimes, I'll ask the party that's at issue questions to see how they're able to recall, how long it takes for them to make a decision, or answer a question. So, that's sort of the way I've been able to modify what I hear instead of just sitting on the bench and saying prove it to me or not. I'm willing to kind of work around that and get to what I need to find out so I can get them an order, if at all possible.”
Dealing with TBI survivors brings a different dimension to a courtroom decision.
“When you have somebody with a traumatic brain injury, or somebody that meets the definition of incapacitated, they often don't understand why it's happening, or that they need to have assistance,” Judge Hurst said. “In fact, I'm sure many folks that are observing or involved in this area can appreciate how somebody becomes angry because they were functioning before, and now they can't. We see that a lot with dementia people, where they start to lose their memory, and they get angry at times. … The goal is to make sure they're OK and safe and protected.”
In Colorado, when a case is filed a court visitor is appointed who’s trained to interview people, look at their homes, talk with family and write a report for the court.
“Another tool that's available is I can appoint a guardian ad litem. That is an attorney that is specialized in focusing on people's best interest,” Judge Hurst said. “And they are able to get all the medical records and talk to family. And maybe, come to a clearer understanding about what is in the party's best interest. We also provide them court-appointed counsel if they don't understand or want to contest the matter, or frankly, are just frustrated.”
Colorado established the Adult Protection Services program in 1983, and one of its missions is to improve the health, safety, and welfare of at-risk adult experiencing mistreatment or self-neglect. https://cdhs.colorado.gov/aps
“(APS) will provide assistance. They will give you stipends, if you're struggling. You just have to be willing to go in and ask for it. I know sometimes that can be humiliating and difficult, right?” Judge Hurst said.
Deciding these court cases that involve family dynamics can be difficult at best.
“You know, I think you've got to be supportive of everybody,” Judge Hurst said. “It’s difficult when you're going against a family member who doesn't understand why they need help.”
Establishing Laws to help People with Disabilities
Meghan Baker, a senior staff attorney with Disability Law Colorado, also joined the Survivor Series to give an overview of mental health treatment in jails and prisons, nursing homes and psych hospitals, and how the law firm is helping to get state laws passed.
“I do a sort of a variety of things,” Baker explained. “Most of my work has centered on helping people that are in facilities. I also play a role in several of our lawsuits. … I do a variety of things, from individual advocacy, systemic advocacy, legislation, so working on drafting and passing bills, working on policy changes, serving on task forces.”

Attorney Meghan Baker works for Disability Law Colorado, which helped get Colorado’s “Olmstead” bill passed last year.
As a small organization, Disability Law Colorado currently is focusing on legislation to help people with disabilities, and the law firm helped get the Colorado Olmsted bill passed last year.
The bill codified the U.S. Supreme Court’s 1999 “Olmstead” decision into Colorado state law. The Supreme Court’s decision basically states that keeping a person in a long-term care facility counts as discrimination under the Americans with Disabilities Act, and that people with disabilities have a right to live at home and receive care.
“We now have a state law that states the same thing,” Baker said “We've also been involved in Department of Justice complaints about people being warehoused in nursing homes. That one has now turned into a DOJ investigation about the state not transitioning people out of nursing facilities.”
Working with the TBI community, Baker has seen how survivors are often undiagnosed, which can lead to a person unable to follow the law.
“I think one thing that a lot of people really don't appreciate about brain injuries is how individualized they are, and how we're talking about invisible disabilities and they’re often undiagnosed,” Baker said. “I've read a lot of statistics, and in the criminal justice system, something like 60 percent of people in prisons, they think have undiagnosed brain injuries.
“It impacts people as far as how they may struggle with some of the skills necessary to follow the laws at all times. … It can be a struggle for people in a lot of the settings in which we put people in these systems. You're expected to sort of follow very strict rules, schedules and regimens, and so there's not always a lot of awareness or accommodation of people who need help, or just need it to be approached differently.
“That adds a challenge of having to figure out how to navigate the services, and where do you fit, and what services do you need. Dealing with things like being told you need to go to a psychiatric hospital, that's not in line with what your treatment needs are.”
Baker has seen some positive changes in Colorado’s justice system with regards to helping people with disabilities get the treatment they need,
“I think there are changes as far as a better appreciation of the differences between disabilities and not treating people all the same or having a single expectation of what an intellectual disability looks like or what a brain injury looks like.”
“But also, seeing the cross-disability issues of people don't always also fit in boxes and also, you don't have to necessarily know which box someone is in to treat them with respect and give them the accommodations that they need.”

















