Traditionally, brain injuries were often overlooked in personal injury accidents, including in hospital emergency rooms and when more obvious life threatening injuries take precedence. As a result, it could be weeks, months or years before the injured party of a motor vehicle accident, sports injury, slip or trip and fall, or assault learns that some persistent impairments are due to an undiagnosed traumatic brain injury. If you or a family member needs legal representation, Paquette & Paquette are your experienced and trusted brain injury lawyers in the Sudbury & Val Caron area.
What Is a Traumatic Brain Injury (TBI)?
A TBI is acquired when physical trauma causes an open or closed injury which disrupts the normal functioning of the brain. In the more common case of a closed injury, damage to the brain may be caused by an external physical blow or shake. This force causes the brain to move back and forth in the skull, which can result in bleeding and further tissue damage.
Severity of a TBI is categorized as mild, medium, or severe. A severe injury may be catastrophic, cause permanent loss of consciousness or paralysis, while a mild injury may be disruptive, and cause a variety of symptoms. However, the level of severity does not necessarily predict the level of dysfunction. The size of the injury, its cause, the survivor’s level of pre-injury functioning and, most of all, its location determines functional outcome and the level of disability. As such, even a mild injury can seriously affect one’s work, social and family life.
What Are the Symptoms of a TBI?
The symptoms of a TBI can be broken down into six main categories: emotional, physical, cognitive, communication problems, behavioural and functional changes.
Emotional symptoms include:
Increased anxiety and/or irritability
Difficulty controlling or regulating temper
Depression and/or mood swings
Lack of self-awareness
Denial of deficits
Physical symptoms include:
Headaches or migraines
Seizures of all types
Double vision, low vision, or blindness
Tinnitus (ringing in the ears)
Balance and coordination problems
Cognitive symptoms include:
Short-term or long-term memory loss
Difficulty planning, organizing, and initiating tasks
Trouble concentrating or paying attention
Impaired judgement
Inability to multitask
Communication problems include:
Difficulties speaking (i.e., forming words)
Difficulties understanding words/conversation
Inability to write
Problems reading and understanding what was read
Difficulties expressing ideas in a concise way
Changes in behaviour and social skills:
Hard to keep up in social situations
May be inappropriate – emotionally, behaviourally, and sexually
Personality changes
Changes or difficulties with relationships
May be impulsive
Functional changes or an inability to do the following:
Self-care tasks
Household management tasks
Dive a car
Work or return to work
Be involved in previous social activities and/or hobbies
In most cases, the symptoms of a TBI are mild and difficult to detect, especially for a person who does not lose consciousness when sustaining a TBI. In fact, there may be no obvious symptoms and physical signs until the later stages when the condition has advanced. Some people suffer brain injuries without recognizing that something is wrong. Often the people around them like their co-workers, friends, and family are the first to recognize that something is wrong.
Diagnosing a TBI
Medical professionals traditionally assess the potential for a TBI according to the degree of awareness post-injury, which is determined by the Glasgow Coma Scale, and the length of time that the survivor may have suffered post-traumatic amnesia. A number of tests can then be performed to diagnose a brain injury, including brain imaging using a CT scan, MRI, MRS, MEG, PET and SPECT scan. Once the initial diagnosis is made, a neuropsychologist or neuropsychiatrist may provide expert advice for treatment, which will depend on the particular symptoms suffered
While the definition of catastrophic impairment has undergone revision for years, the latest definition for impairment arising out of collisions on or after June 1, 2016 is as follows. Now, brain injuries are assessed using the Glasgow Outcome Scale instead of the Glasgow Coma Scale, among other things. For more information on the changes to the definition of catastrophic impairments, please contact a legal representative.
How Is a TBI Compensated?
Compensation may be available if you were involved in a motor vehicle accident and/or if the TBI and the resulting disability results from the negligence or other legal wrong committed by another person. Compensation may arise as a result of a personal injury tort claim and, if the accident resulted from a motor vehicle accident, you may also qualify for statutory accident benefits.
Statutory Accident Benefits
Under the Statutory Accidents Benefits Schedule (SABS) of the Insurance Act, an injured party can claim accident benefits regardless of who was at fault for the accident. There are strict time lines to apply, and specified limits on the benefits and certain benefits may be optional or available only to those victims whose injuries are deemed to be catastrophic.
Under the SABS, the standard medical, rehabilitation and attendant care benefits are available up to $65,000 for non-catastrophic injuries, with a $3,000 monthly maximum benefit for attendant care. For catastrophic injuries, the combined total for medical, rehabilitation and attendant care benefits are $1,000,000 unless optional additional benefits were purchased ahead of the injury.
Also, if you are eligible for income replacement benefits, they max out at the lesser of $400/week or 70% of your net income and no benefits are available for the first seven days following the accident. With optional coverage, the amount of income replacement benefits can be increased to $600, $800, or $1,000 weekly.
Other forms of accident benefits you may qualify for include attendance care benefits, caregiver benefits, non-earner benefits, death and funeral benefits, and other benefits.
Tort Claim
Since the accident benefits (if available in your situation) may be inadequate to cover your total losses (including your loss of income to date and future loss of income), your lawyer can file a tort claim against the at-fault driver and their insurance company. If you have had a motor vehicle accident, the tort claim will be additional to the accident benefits sought from your insurance company.
However, there is a statutory deductible (since 2003) for motor vehicle accident tort claims. Indexed to inflation (since 2016), the deductible (which initially was $30,000) is currently approximately $40,000. This deductible vanishes for claims worth $100,000 or more.
Another important aspect of a tort claim is that the injured person must meet the “threshold” if the claim arises from a motor vehicle accident. The threshold requires that the injured person experience one of:
Permanent and serious disfigurement or
Permanent and serious impairment of an important physical, mental, or psychological function or
Death. Under the first two conditions, medical proof of impairment and its effect on daily living will need to be demonstrated before the claim reaches its end.
If you have a tort claim, a major component is for general damages, which includes compensation for the pain and suffering caused by the accident. These non-economic damages are not compensated under accident benefits and they are capped in a lawsuit at approximately $370,000 after adjustments for inflation. This cap on non-pecuniary damages relates to a trilogy of cases decided by the Supreme Court of Canada in the late 1070s (at $100,000 at that time).
If you case qualifies for a personal injury lawsuit, the process is much like a conventional civil lawsuit, except it may be arranged on a contingency fee basis, which means that you do not pay legal fees unless and until reasonable compensation is achieved. To work in this manner, a lawyer will be quite certain about the strength of your case.
Contact Paquette & Paquette for Your Free Personal Injury Law Consultation
Located in Sudbury and Val Caron, a brain injury lawyer at our firm can assess your accident, discuss the laws applicable to your case and what type of compensation you may qualify for. Our firm brings extensive knowledge and experience into every brain injury case. For over 50 years, Paquette & Paquette has been providing legal representation related to brain injury accidents in Sudbury and Val Caron. Contact us at 1-888-383-3751 in Sudbury or 1-877-767-6356 in Val Caron.