Posts Tagged ‘acquired brain injury’
The seriousness of concussions cannot be overstated.
Health care providers are becoming more aware of the effects of concussions (also known as Acquired Brain Injury – ABI). What was once a, “get up and shake it off” occurrence, has now become a proper assessment with protocols for monitoring the status of the individual as they return to work or sports.
ABI is a physical injury to the brain (concussions). It can be caused by a blow to the head, severe rotation of the neck or whiplash, or even from a lack of oxygen. Over 160,000 Canadians suffer brain injuries every year and, with better reporting, that number gets more accurate and thus keeps rising.
About 50% of ABI’s come from falls and motor vehicle accidents. While many injuries are mild and fully recover (80 – 90% in 7 – 10 days), many can last for much longer. Some of the symptoms are temporary – headaches, vomiting, concentration issues, memory issues and balance problems. However, some issues can be longer standing – personality changes, sensitivity to light and noise, sleep problems, depression and other psychological issues.
Prognosis for ABI’s depends on many factors. Red flags include post traumatic amnesia, history of previous ABI, skull fracture, nausea and dizziness after injury.
Treatment for concussions are rest, rest, and more rest. Also, those recovering have to limit their exposure to stimulation and thinking that taxes the brain (computer screens and video games). Return to work or sports is the responsibility of the treating doctor. Premature return increases risks of second impact syndrome (can be fatal).
The seriousness of this condition cannot be overstated. New imaging techniques are developed to show the extent of the injury and direct treatment. Hopefully those tests will help those suffering to have the greatest chance of recovery and advocacy.
Our firm successfully represented a client in an arbitration hearing through the Financial Services Commission of Ontario (FSCO).
D.C. (initials are being used, at our client’s request) was riding his bicycle in Burlington, Ontario, when an unidentified vehicle struck either him or his bike and he fell to the ground. D.C. does not recall the details of the actual impact, but did recall being struck by a white vehicle. The vehicle did not stop and there were no known witnesses.
D.C.’s bicycle was damaged to the point that he could not ride it home. The damage was seen by his wife and his brother-in-law. Since it would cost more to repair the bicycle than to buy a new one, it was thrown out in the trash. D.C. was unaware that, because his injuries were caused by a motor vehicle, he was eligible for accident benefits, so the bicycle was not kept as evidence. Additionally, the incident was not reported to police, as D.C. did not think that anything could be done since the vehicle that hit him was unknown and there were no witnesses.
He went home, scraped and bruised, but otherwise felt fine. The next morning his wife found him unconscious in bed and he was rushed to hospital by ambulance, where he was found to have suffered a subdural hematoma (acquired brain injury), which necessitated a full craniotomy. Several months later, in the course of his rehabilitation, he was advised to seek legal advice, since he could be eligible for accident benefits. D.C. called, and then retained, Smitiuch Injury Law.
An accident benefits claim was started with D.C.’s insurer, Aviva Canada. Aviva accepted D.C.’s accident benefits claim, accepted his injuries as being catastrophic, and began paying accident benefits. However, once some benefits were denied and were then disputed, Aviva took the position that D.C. was not involved in an “accident”, as defined in the Statutory Accident Benefits Schedule (SABS).
Luke Hamer, assisted by Chris Jackson (Accident Benefits Manager), represented D.C. Both the client, his wife, and his brother-in-law were interviewed and all were in agreement with the type of damage that was done to the bicycle. Based on their description, a forensic engineer was retained, who was then able to provide an opinion that the type of damage to the bicycle described by the witnesses could only have been caused by a motor vehicle.
Based on the testimony of the witnesses, the arbitrator ruled in favour of D.C. As a result, he will continue to be eligible to receive accident benefits, which he will likely require for the rest of his life.
The redacted arbitration decision can be read it its entirety by clicking on the link below.
A new arbitration decision from the Financial Services Commission of Ontario (FSCO) affirms previous decisions that a retrospective attendant care needs assessment (commonly referred to as a “Form 1”) are viable.
In the decision Stephanie Kelly and Guarantee Company of North America [FSCO A12-006663], Arbitrator John Wilson affirmed that Ms. Kelly is entitled to payment for supplementary attendant care services, to be reimbursed for the cost for the Form 1 assessment, interest, and her expenses in the matter.
Ms. Kelly suffered catastrophic injuries and required one-to-one attendant care while in hospital. Her family was, understandably, not in a position to know that a Form 1 was required to be completed to determine the amount of attendant care needs she required by use of a Form 1. Once they were aware that one needed to be completed they retained an occupational therapist, who then completed a retrospective assessment.
In considering The Guarantee’s position that no attendant care benefit is payable prior to a Form 1 being submitted to an insurer, Arbitrator Wilson relied on a previous arbitration decision, T.N. and The Personal, wherein Arbitrator Bayefsky stated the following:
This does not, in my view, mean that an insured forfeits their right to attendant care benefits, or that an insurer is released of any obligation to pay attendant care benefits, prior to the Form 1 being submitted. In my view, significantly stronger statutory language would be required to effect this purpose. The section as it now reads simply ensures the orderly determination of a person’s need for attendant care (in accordance with a proper attendant care needs assessment), and protects an insurer from having to determine what it should pay in the absence of a specific and legitimate attendant care needs assessment.
The decision can be read in its entirety by clicking on the link below.
Smitiuch Injury Law to be Gold Sponsor at Hamilton Health Sciences Centre’s 21st Annual Conference on Neurobehavioural Rehabilitation in Acquired Brain Injury
Smitiuch Injury Law is pleased to be a Gold Sponsor for this important event. It will be held on May 8 and 9, 2014, at the Hamilton Convention Centre.
We encourage all ABI Rehabilitation Professionals, Psychologists, Physicians, Program Planners, Insurance and Advocates to attend.
You can obtain a copy of the brochure by clicking on the link below: