October 22, 2007, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Lawyer, Notetaker, Case manager, Candlestickmaker
The many "hats" that a personal injury lawyer can wear in assisting brain injured victims
Representing a brain injured person, as a lawyer, immediately brings forward the thorniest aspects of the job. The relative competence of the injured party is the issue, and that competence bears directly on the question of whether the client can properly instruct the lawyer having received the lawyer´s advice. In a personal injury context the lawyer not only arranges for needed or appropriate relevant assessments but in fact plays a role in arranging treatment through the conclusions of the reports of the assessing practitioners. In other words, wherever a perceived shortfall in assessment or treatment may be seen, the lawyer must put on whatever hat necessary to help the client´s progress to the maximal eventual recovery.
Those suffering from brain injury often suffer the same plight as those suffering from soft tissue injuries, chronic pain and/or fibromyalgia. The general insurance view is that the injured person can "shake it off" and then move on. This is often the case for those suffering from mild to moderate brain injury. For those suffering from severe brain injury the symptoms and life altering impact of the injury is very apparent and the severely brain injured person will have the sympathy of the public in general
Where the brain injury is not readily apparent to the casual observer, such as in a mild brain injury, there is a greater likelihood for the victim to be misunderstood and the symptoms misinterpreted. This could even stigmatize or ostracize the brain injured person in the community. A neighbour, casual acquaintance or distant relative is sought out as a witness for their observations, such as they are, that the person has fully recovered or that nothing has changed.
We find that close family members such as a spouse or teenage children, may start to notice that there are some aspects of the injured person´s personality and mannerisms that are not the same as pre accident. They often describe "changes" in the person´s personality and they cite changes in areas such as inhibition, appetite, emotions, memory, concentration, fatigue, motivation and coordination. The injured person does not appear to be the same person as before the accident. The changes can be quite subtle to the casual observer but cause dramatic shifts within the victim´s immediate circle of friends and family.
The personal injury lawyer will be contacted at some point in the process, generally following a crisis, and will start to review the matter with the injured party and the family members. A personal injury lawyer with experience in brain injury will be familiar with some of the symptoms which may indicate that a more serious issue, like brain injury, is present. By reviewing the symptoms, and considering the mechanics of the injury, including any blow to the head, then the personal injury lawyer will want to consider all the possible diagnoses, including brain injury. As is well documented in the medical literature, the sooner that a brain injured person obtains proper diagnosis and treatment, the better the potential outcome and recovery. The personal injury lawyer can play a significant role in assisting the brain injured person to receive the medical and rehabilitative treatment to give them the best chance of achieving maximum recovery.
Obviously the personal injury lawyer does not make the medical diagnosis. The personal injury lawyer is guided by the medical information that is received but may play a significant role in assisting in obtaining medical evidence including diagnosis. This could include the provision of assisting with the insurer to facilitate an early neuropsychological assessment and diagnostic assessment such as a CT or MRI. The medical evidence is essential for the lawyer as it guides any claim that arises from the original accident causing injury. At the same time, there is an obligation in law for an injured party to mitigate their damages. In a personal injury setting, this would require the brain injured person to obtain treatment as soon as is considered reasonable by the medical treatment providers. Of course, the earlier all relevant information is obtained in the process, the better the chance for proper diagnosis and the initiation of appropriate treatment targeted to the diagnosed injury.
The personal injury lawyer´s role is clearly one of advocate for the injured person. Once the injured person has left the hospital setting, many of the advocacy support structures that have been created in that setting - nurses, therapists, social workers, and discharge planners - are no longer readily, if at all, available to the brain injured person.
The brain injured person now has to rely on his/her own abilities and those of family members or trusted friends. Unfortunately, the injured person is vulnerable. The brain injured person is operating at a disadvantage as he/she is suffering from and dealing with the injuries sustained in the accident. His/her energy, focus and concentration to deal with his/her own health needs have been severely diminished. In addition, the brain injured person and family and friends will not have much experience, training or education in dealing with the health system or insurance schemes, whether they are disability insurers, auto insurers or group benefit insurers. The personal injury lawyer and his/her personal injury team can fill that void and provide comprehensive assistance outside the hospital or clinical setting to the brain injured person.
Why the delay?
It is well understood that early detection and treatment will lead to better recovery results for those suffering from brain injury. The first two years following an accident are crucial.
However, there are numerous examples and reasons why a brain injured person can have their symptoms, and their brain injury, go undiagnosed:
- Does not have a family physician
- Client does not disclose all symptoms to family physician
- Family physician´s primary role is acute care
- Lack of funding available through community social services
- Symptoms can be masked by or attributable to medications and/or pain
- Delay in referral for specialist assessment
- Lack of early diagnostic assessment - CT or MRI
- Lack of coordination among existing service providers
- Accident Benefit insurance adjuster provides no follow up - just responding to treatment plans or arranges an inadequate assessment which confuses the situation further
- Delay in assessment where a treatment plan is denied (ie. MRI to be deferred to OHIP)
A key role of the personal injury lawyer is to assist the brain injured person with obtaining diagnosis by facilitating treatment as quickly as possible in the circumstances and in the best interest of the injured person.
Claims arising from Motor Vehicle Accidents
Access to First Party benefits (Statutory Accident Benefits Schedule- SABs)
Where the brain injured person has been involved in a car accident, and the injury arises directly from the use of a motor vehicle, then access to the SABS is available to that person. The SABS provide access to comprehensive medical and rehabilitation benefits where approved by the first party insurer.
Where the brain injured person has been deemed "catastrophically impaired" as defined in the SABS, generally as a result of a Glasgow Coma Scale rating of 9 or less, then significant benefits are available under the auto insurance policy, including the assignment of a case manager.
The appointment of a case manager is crucial to the coordination and follow up on services for the brain injured person. However, the appointment of a case manager is not automatic in every case. There have been circumstances where the brain injured person had a sufficiently low GCS score, but the insurer has let several years elapse without taking any steps to appoint a case manager.
The lawyer´s role in these circumstances is to immediately arrange for case management services. The injured party is entitled to select the case manager. Practically speaking no injured person will have a roster of preferred case managers. The decision has to be guided by a number of issues which include:
- Ensuring that the case manager has experience with brain injured clients;
- The locality of the case manager which results in a greater likelihood of knowledge regarding local services available to the brain injured person;
- The relationship between the service providers, including the personal injury lawyer, with the case manager to ensure a smooth working relationship with the same game plan for the brain injured person´s treatment and recovery.
There are times where the brain injured person will not have a GCS score of 9 or less however the person continues to suffer the symptoms related to a brain injury which are having a significant impact on the person´s life. Where the brain injured person is suffering from a "marked" or "extreme" impairment in functioning, this can lead to a catastrophic impairment designation. However, this requires a strategic approach as the diagnosis is subjective and will have to be supported in the event of a denial by the auto insurer in accepting such an assessment.
Access to Statutory Accident Benefits (SABS)
Access to benefits under the SABS are not automatic. There are some pre-qualifying conditions that have to be considered. The personal injury lawyer will assist the brain injured person in accessing those benefits. The injury must arise directly from the use or operation of a motor vehicle. There are several terms subject to interpretation and the brain injured person will require a personal injury lawyer to assist in gaining access to the SABS and to assist in obtaining recommended treatment. There are a number of issues that can arise with respect to access to SABS and treatment under the SABS:
- Did the accident arise "directly" from the use of a motor vehicle? There are several cases before the Supreme Court of Canada dealing with issues like a hunting accident where a car was used to transport the hunters to the location. There may also be entitlement when a person steps out of a parked car and slips on ice in a parking lot. Benefits have been made available where an individual steps off of a TTC bus and slips after stepping down.
- What is a "motor vehicle"? There are cases that consider whether a go-kart, backhoe, other industrial machinery, or even roller blades would be a motor vehicle.
- Whose insurance benefits apply? A situation could arise where the individual is involved in a single vehicle accident with no auto insurance coverage. The Motor Vehicle Accident Claims Fund then becomes relevant.
- When is treatment considered "reasonable and necessary"? Denial of treatment plans prepared by medical service providers by insurance adjusters are a common problem. One would expect that a service provider, medically trained and competent, is in the best position to assess a brain injured person´s needs and make the appropriate request. We have, in Ontario automobile legislation, a USA style health care plan where the auto insurers are the HMOs and determine what treatment is going to be approved and funded.
A personal injury lawyer will be able to assist the brain injured person in accessing full benefits in a timely manner. The mediation and arbitration process to resolve disputes is complicated but an experienced personal injury lawyer will have no difficulty in navigating the brain injured person´s claim through the process. The personal injury lawyer´s goal, among other things, is to try and expedite the process so that the brain injured person´s access to diagnosis and treatment is not unreasonably delayed, especially during the early stages of recovery.
Where the brain injury, arising from a motor vehicle accident, does not result in the brain injured person being designated as catastrophically impaired, there is a risk that the brain injury will be "missed" and the symptoms will not be properly diagnosed. In those situations the access to treatment and benefits could be limited after 16 weeks following the accident where the brain injured person is placed in an insurer´s pre-approved treatment framework. A mild brain injured person could be diagnosed as having WAD II injuries and placed in the wrong track for treatment. A diagnosed mild brain injury would take the brain injured person out of that framework and open up access to all available benefits. This is often only remedied once psychological symptoms inevitably show up and outweigh the simplistic WAD II initial diagnosis.
Where the injury arises from an accident that does not involve a motor vehicle
In accidents not involving a motor vehicle, the access to services becomes significantly limited to social services and OHIP. There are restrictions in the services available because of resources. It is well acknowledged that our health care system is strained for a variety of reasons including lack of sufficient funding and ever increasing costs. Our health care system is also hampered by a lack of available specialists and delays in diagnostic assessments.
In these circumstances, access to services needs to be sought and hopefully implemented as quickly as possible and the amount of services needs to be maximized. Any available health care plan has to be reviewed and accessed. In some cases, where resources are limited, arrangements may have to be worked out with service providers to allow for treatment to begin immediately. If nothing else, this intervention will at least stabilize a situation and to provide some objective levels of impairment assessment.
The Personal Injury Lawyer´s many roles
The personal injury lawyer´s role is thus not simply to access the legal process and to sue the party that caused the injury and their insurer. The personal injury lawyer´s role as advocate is expanded to a number of roles on behalf of the brain injured person. These can be given a variety of characterizations or names but they include some of the following:
One of the most important roles that can be carried out by the personal injury lawyer and the personal injury team. This is particularly important in those circumstances where the injured person does not have access to a first party funded case manager, such as under auto insurance where a person is not deemed catastrophically impaired and does not have a friend or family member that can perform a version of the role. The personal injury lawyer and their staff will, among other things, step in to coordinate service providers, assist in finding specialists and treatment providers, assist in accessing first party benefits and pass on recommendations to treatment providers. Coordinating the paper trail alone is crucial to letting the assessors and treatment providers know essential objective data.
Where the brain injured person has access to auto insurance benefits, there is now legislation designed to ensure that an insurer must provide benefits to an injured party with utmost good faith. Formerly only a common law doctrine, The Unfair or Deceptive Acts or Practices regulation is designed to provide injured persons with some leverage in a clearly uphill tilted SABS landscape. The definition of "unfair or deceptive act or practice" includes any conduct resulting in unreasonable delay in, or resistance to, the fair adjustment and settlement of claims. There are a lot of subjective elements to the wording under the regulation and the personal injury lawyer will have to assist the brain injured person in policing the conduct of the insurer given their knowledge of what constitutes unreasonable conduct.
Where the accident involves a motor vehicle, there have been numerous amendments and changes to the accident benefits available in Ontario and access to those benefits. The changes to the SABS require some strategy to be applied on behalf of the brain injured person. For example, the changes have altered the process for the assessment of whether an individual is catastrophically impaired. There are now very tight timelines and it is essential that the appropriate catastrophic assessment team be assembled early in the process. This is the one time that unlimited funding can be applied to assessment and this makes a great deal of difference in a system fraught with cost limits and paper delays.
During the initial meetings with the brain injured person, gathering the background information, the details of the accident, the person´s pre and post accident life circumstances, speaking with family members and friends and gathering information about symptoms is critical. This frames the key role the personal injury lawyer plays in finding the truth about the client´s actual situation and level of disability. The most important phase is the gathering of pre-accident medical information and assuring that it is not being used unfairly or with prejudice by an insurer to deflect and minimize the extent and nature of post accident complaints.
Often a client has had previous injuries or trauma which may or may not bear on the current diagnostic situation. A passing mention in a five or ten year old medical record (given the limits of medical handwriting) can be used as determinative in the absence of a proper and complete explanation of the circumstances. This forensic fact finding does not occur to the injured party as either necessary or obvious and is a crucial role performed by the lawyer.
The brain injured person will deal with innumerable difficulties from performing simple pre accident tasks to attempting more complicated life decisions. The injured person will undoubtedly suffer, among other things, frustration and depression because of the changes and their overall impact. The personal injury lawyer and staff will take time to hear the person and try to provide some direction or assistance in sorting out these frustrations and where necessary assist with any referral required. We attempt to cut through the risk analysis, which can weigh very heavily on the brain injured person, and provide some assurance that matters will ultimately lead to a helpful conclusion.
We cannot weigh symptoms and provide a medical diagnosis and treatment, but we can weigh probabilities and possibilities, provide advice and manage expectations.
As for candlestick-making, despite the proximity of St. Jacobs and the opportunity there provided, we do try to wax eloquent from time to time.