THE POST-ACCIDENT CONCUSSION DILEMMA

Establishing conclusive evidence of a mild traumatic brain injury, or concussion, is one of the most challenging issues for many of our clients as they seek ongoing care following a motor vehicle accident. It is well-documented that concussion symptoms can occur in relatively low speed collisions, and even without direct head trauma. If identified and treated appropriately, concussion sufferers often experience excellent recovery. On the other hand, the impact of an untreated brain injury, "mild" or not, can be widespread, devastating and permanent.

Despite this, your own insurance companies, paid by you to protect your interests, refuse to acknowledge the prevalence of mild traumatic brain injury, routinely denying treatment and treating you like con artists trying to "cheat the system".

YOUR AUTO INSURANCE- PROFITS VS. PEACE OF MIND

The insurer’s duty to you is one of utmost good faith. By law, it is supposed to put your interest above its own. However, in Ontario, insurance companies are run for profit. This seems obvious, but it results in a conflict of interest at the heart of your contract of automobile insurance. The more insurers pay in claims, the less money they make. Since you have no legal choice but to purchase coverage, and there are so few auto insurers, there is no genuine incentive to honour the duty of good faith. Instead, all of them present a facade of objectivity and concern, while devising powerful strategies for denying claims and saving money- your money, paid in good faith every month for these exact situations.

So, rather than authorize immediate, proactive treatment designed to give you the best chance of successful recovery from a concussion, identified by your treatment providers, insurance companies claim that there is no "objective evidence" of a head injury or any ongoing symptoms and deny the treatment. If you or your legal team start a dispute, they stonewall you, deny all treatment and try to pressure you into a lowball settlement. While this is ongoing, you are left without crucial treatment, unless you have independent means to pay for it.

IMPACT ON YOUR LAWSUIT

This same tactic is often used against brain injury victims in their lawsuits against the at-fault driver. In order to sue successfully for general damages in Ontario, plaintiffs must prove that they have suffered a permanent and serious impairment. The defendant’s lawyer and medical witnesses will insist that most concussions heal in 12-16 weeks, and there is no objective evidence to support the complaints of ongoing dizziness, fatigue, disorientation, headaches, cognitive and psychological impairments- the plaintiff, therefore, is faking the injury for the sake of the lawsuit.

MORE BAD NEWS

Until recently, the means of demonstrating concussion objectively were expensive and inconclusive. Neurological testing generally reveals nothing. Neuropsychological testing can identify impairment. However, the test results can be interpreted to minimize the impairment by an insurer’s medical expert. A SPECT scan can identify a substance called hemosiderin, residual evidence of traumatic brain injury. Unfortunately, access to SPECT scans is limited and expensive. As well, the scan cannot prove when the hemosiderin was deposited, so causation is not clear. Finally, many concussions do not produce hemosiderin deposits, and so the scan can actually hurt your argument in some cases.

FINALLY, SOME GOOD NEWS!

A recent study performed at the University of Western Ontario may address these challenges. Blood testing has been conducted for many years in relation to traumatic brain injury. Researchers have tried unsuccessfully to identify concrete markers unique to concussion.

In the Western study, rather than seek a single bio-marker, researchers Mark Daley and Douglas Fraser took a broader approach and looked at 174 of the chemicals known as metabolites in the blood stream. This approach revealed that:

• the metabolites of test subjects known to have concussions were very similar; AND
• those of non-concussed test subjects were also similar; BUT
• the metabolites of the two groups were not similar to each other.

The study produced a remarkable 90% accuracy rate for predicting concussion. This far exceeds any previous testing results.

The results of this study need to be validated across a much larger subject population, but it is certainly an encouraging starting point. Assuming that the results are consistent going forward, this cheap, quick and reliable test could open doors to timely brain injury treatment following a car accident, and help us all fight back against the tactics of our insurers.

If you have any questions related to this or other personal injury matter, please feel free to contact us.