From MIG to CAT – The Difficulties of a Claim for Mild Traumatic Brain Injury
Sadly, it is with ongoing regularity that we see people with mild traumatic brain injuries (mTBI) being trapped within minor injury claim limits following motor vehicle accidents. The problem that we see time and again is that the mTBI is dismissed by the insurer in the absence of immediately available objective findings. Complaints including concentration, attention, memory, dizziness, headache, changes in senses, etc. may be considered by adjusters as being unsupported by evidence and thus, not credible. Following the dismissal of the cognitive complaints, insurers will often view a person as suffering only simple soft tissue injuries and, as a result, apply the definition of a minor injury.
With application of a minor injury definition, there comes limitation of medical and rehabilitation benefits to just $3,500. With this definition, there also comes a determination of no coverage for attendant care benefits. Such restrictions highly limit a person’s ability to access much needed rehabilitation and care following mTBI.
Without effective legal representation, it can be nearly impossible for an injured person to access the supportive medical documentation that is needed to convince the insurer of the serious nature of the injury. The $3,500 available for med/rehab benefits is often spent in the early days on much needed physical treatments. Even if funding remains available, request for cognitive investigation or rehabilitation are often denied by the insurer without even being subjected to an insurer examination.
To overcome a minor injury determination, a person who has suffered mTBI must find a way to provide the insurer with medical information that documents and supports the presence of the injury. To name a few options, this may include MRI imaging, neurology consultation reports, occupational therapy cognitive assessment reports and neuropsychological assessment reports.
The challenge in these cases is that without funding by the accident benefit insurer, the injured person may have to rely on his family doctor to initiate and expedite referrals for the investigations and there can be lengthy delays. In some cases, it can take years to overcome an insurer’s determination of minor injury.
Without appropriate rehabilitation and care, the impairments associated with mTBI are not addressed and may become chronic. It is with increasing frequency that we see the unrepresented, and even sometimes the represented, client move through the auto insurance claim from minor injury to catastrophic coverages. This trend is alarming both to the injured party, plaintiff counsel, and (I can only imagine) to insurers.
There is clearly a flaw in a system that prevents a person from being investigated or from accessing reasonable and necessary rehabilitation and care. One can’t help but question whether early access to investigations and treatment would prevent a person from becoming declared as catastrophically impaired.
There is an onus on plaintiff counsel as well as on medical and rehabilitation providers to be advocates and drivers on behalf of our clients when dealing with insurers. There is, likewise, an onus on insurers to listen to the information that they are provided and to be considerate to removing minor injury limits at every point of contact. We must work together to ensure that those who have suffered mTBI receive the care and rehabilitation that they require and deserve.
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