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Compensation after a Severe Traumatic Brain Injury (TBI)

By Matt Lalande in Brain Injuries on December 12, 2021

Compensation after a Severe Traumatic Brain Injury (TBI)

What is a traumatic brain injury?

A traumatic brain injury “TBI” happens when there is “an alteration of brain function (e.g., loss of or decreased level of consciousness, loss of memory for events immediately before— called retrograde amnesia—or after an accident—posttraumatic amnesia—the injury), or other evidence of damage to the brain. The damage to the brain is caused by an something external (e.g., acceleration/deceleration movement of the brain in an accident, or the head struck by an object.)

The  most frequent causes of severe traumatic brain injuries are car accidents, pedestrian accidents, bicycling accidents, trucking accidents and motorcycle accidents. Falls are also a major cause of traumatic brain injury.

Primary damage will often occur such as contusions, lacerations, hematomas and axonal injury. Other symptoms that follow the initial traumatic brain injury injury and are called secondary damage. Secondary damage involves damage to cerebral tissue, such as inflammation, ischemia (which is when blood flow (therefore oxygen) is restricted), elevated intracranial pressure, abnormal neurotransmitter release, or hormonal changes.

Because the brain undergoes strong rotational forces within a person’s skull during an accident, stretching or twisting of axons can occur, causing a phenomenon known as diffuse axonal injury in various areas of the brain. Diffuse axonal injury is extremely serious. It is the leading cause of death and disability among brain injury victims.

Damage to the frontal and temporal lobes of the brain often happens because of theory called “coup and/or contrecoup” forces (when the brain bounces back and forth or sideways within the cranium). 

A traumatic brain injury rarely affects one area of the brain. Normally a serious traumatic brain injury leads to diffuse damage throughout the multiple regions of the brain, which then in turn leads to a multitude of physical, social, cognitive, psychological, neural cognitive and neuropsychological symptoms.

The course of care for an accident victim following moderate or severe traumatic brain injury usually involves being admitted to a trauma unit at a hospital (acute care), followed by inpatient rehabilitation, then outpatient rehabilitation, and finally community reintegration services into the community through an ABI centre or back home.

After severe traumatic brain injury, most accident victims suffer from posttraumatic amnesia of how the accident actually occurred. Many brain injury victims also suffer from being disoriented, confused, and have major difficulty encoding new information. Brain injured victims will often go through several weeks or months of rehabilitation with a different kinds of doctors, specialists and treatment providers (called a “multidisciplinary team”) and receive intensive physical therapy, occupational therapy, psychology or neuropsychology, speech therapy, or exercise therapy, for example.

When a person is in hospital his or her schedule, treatments, routines, and activities will be mainly decided by hospital staff or rehabilitation center staff. We have also seen that in some cases, brain injury victims might also sometimes return home for short periods of time (e.g., a weekend) to help them prepare both themselves and their families to their return home and to the community, as well as take part in physiotherapy and other treatment modalities during their outpatient visits.

Unfortunately, brain injured victims often have to suffer with permanent and significant cognitive deficits, as well as very important behavioral changes. These sequelae can evolve over time as the accident victim ages or goes through important life transitions. It is now widely admitted that severe TBI should be considered a “chronic medical condition” since many individuals live with the evolving sequelae of their injury for the rest of their life.

Significant help or services even after the rehabilitation phase are often necessary. Indeed, although some issues may abate, others can actually worsen as the accident victim ages. The following sections go into more detail about the possible consequences of a severe traumatic brain injury in different spheres.

Common Sequelae after a TBI: Physical Issues 

TBI can lead to a wide array of physical consequences. These can include:

  • sensory impairments (visual disturbance, alterations in smell or taste, hearing loss),
  • dizziness;
  • balance problems;
  • hemiparesis (weakness on one side of the body);
  • movement disorders;
  • bladder and bowel issues;
  • problems with swallowing or appetite;
  • issues with sexuality;
  • alterations in balance and gait, vertigo and tinnitus – to name a few.

Unfortunately, because many people suffer head injuries in car or motorcycle accidents, TBI often co-occurs with physical injuries to other parts of the body, for example, with fractured limbs. Studies have shown that compared to people that suffer orthopedic injuries without brain injury, having a TBI is associated with more physical injury, greater physical disability, and poorer function. The rate of chronic pain, especially headache, is very high among people who experience TBI. More than 50% of accident victims are estimated to have chronic pain, with headaches being the most commonly reported, followed by neck, shoulder, back, and upper limb pain. Headaches, which can affect between 30% and 90% of patients, are often chronic, can evolve into migraines, and can affect sleep or contribute to fatigue.

Common Sequelae after a TBI: Cognitive Issues

Cognitive impairments are the hallmark of a severe brain injury. For example, difficulties with attention are extremely common and can have an impact on concentration and one’s capacity to stay on tasks and complete these satisfactorily.

Information processing speed and efficiency is also often affected and this difficulty is associated with marked mental fatigue. Significant problems with short-term as well as long-term memory can be observed because of potential problems in various memory-related processes including acquisition and encoding of material into memory, and deficits in consolidation, retention, or retrieval of information. Language and communication difficulties can also be observed, some clients we have helped in the past have presented with slurred speech, word finding problems or poor word selection, issues with oral or written comprehension, difficulty initiating or sustaining conversations, or speaking either too rapidly, too loudly, or too softly.

Also quite common are deficits in executive functions, such as planning, organization, and perspective taking. Social cognition can also be affected, either subtly or significantly, and can encompass issues with the interpretation of social cues, recognition and understanding of emotions of others, and problems with generating appropriate responses to social cues which can have a profound impact on social behavior.

Common Sequelae after a TBI: Behavioral and Personality Changes

More severe TBIs can lead to changes in behavior and in the way the person interacts with the world. For example, the accident victim may present decreased self-control and regulation, stimulus-bound behavior, emotional lability, decreased social perceptiveness, and difficulty to learn from social experience.

Behavioral and personality changes are usually more marked in more severe brain injuries and these can significantly impact social relationships and it may result in alienation from others, for example, if the person presents impulsivity, disinhibition, childish behavior (e.g., difficulties with turn-taking, sharing), or hyperverbosity.

Some individuals can also behave aggressively (physically or verbally), become irritable, or may be unpredictable.

Common Sequelae after a TBI: Social Network and Relationship Strain 

Severe brain injuries can also have a significant impact on relationships, and the functioning of the couple or family can be impacted. Couples may experience difficulties linked to changes in roles, loss of sexual intimacy, and decreased empathic communication, which are likely to create relationship problems. In some of our cases, family members report an increase in responsibility for caring for the family, which can cause stress over time. As a result, the risk of marital distress and separation following a TBI is not overly uncommon.

Common Sequale after a TBI: Impacts on Daily Activities, Quality of Life, and Social Participation 

Given the very large array of physical, behavioral, cognitive, and emotional challenges which can be brought about by TBI, daily activities, such as taking care of oneself, completing household chores, and fulfilling familial and work-related task, can become difficult, thus limiting the person’s ability to engage in personally meaningful and valued activities. Quality of life and social interactions can be severely affected after one suffers a serious brain injury.

Brain Injury Compensation

If you or someone you love has suffered a serious traumatic brain injury that was caused by someone who is negligent or careless, then there is the right to claim compensation. There is no doubt that in most severe traumatic brain injury cases, clients will require lifelong treatment and rehabilitation. An experienced brain injury lawyer at Lalande Personal Injury Lawyers can help you through this difficult time.

The following is a summary of compensation that you may be entitled to if you suffered a serious brain injury.

Damages for Housekeeping: in Ontario, you’re entitled to claim compensation to assist with your future housekeeping and home maintenance costs. In most cases that we see, most clients were quite independent with household duties and were either responsible for some or all household cleaning tasks, including such things as vacuuming, bathroom cleaning, floor washing, dusting, laundry, changing linen, cleaning kitchen appliances, washing cabinets and baseboards, etc.

After suffering a severe brain injury, many accident victims go on to suffer limitations with housekeeping and home maintenance responsibilities due to fatigue, pain, reduced physical tolerances and emotional difficulties. Tasks often take much longer to complete and much is often left unfinished.

Outdoor maintenance activities can also become an issue, particularly such things as grass cutting, pruning shrubs, gardening, cleaning eavestroughs, cleaning exterior windows, and raking leaves. Persistent pain, fatigue, mood difficulties, confusion, concentration, reduced physical endurance and stamina resulting from the accident often causes brain injured victims to experiences difficulty performing all, if not most outdoor maintenance responsibilities.

Damages for Future Care – in Ontario, accident victims are entitled to claim future healthcare costs which are not covered by OHIP. For example, an accident victim may require ongoing attendant care needs to assist with his or her daily care. A person’s physical, cognitive and psycho-emotional impairments may have a negative impact on their engagement in pre-accident living activities which may in turn necessitate attendant care assistance to help with self-care routines to ensure safe functioning and to assist with reduced physical tolerances, balance impairment issues, amotivation, low mood, emotional dysregulation, cognitive challenges and communication difficulties.

A brain trauma victim may also require supervision for cueing and support, severe memory issues, challenges with problem-solving, decision-making and initiation or follow-through of activities due to his or her mental impairments. A person may also require assistance with dressing grooming bathing, feeding her meal preparation, mobility, hygiene care or periodic daily supervision, reassurance and support due to emotional and cognitive impairments.

In addition, an accident victim may also require medical and rehabilitative treatment needs to address his or her brain impairment and to facilitate increased functioning, minimize further risk of decline, deterioration or regression.

Physiotherapy is often recommended, as is such things like concussion rehabilitation, massage therapy, occupational therapy and exercise programs. Often times a person with a severe brain injury will require psychological and neuropsychological intervention to assist with psychoemotional, cognitive and behavioural impairments.

Psychological services are often recommended to assist a person with brain trauma cope with life changes and losses that they experience and continue to struggle with. More often than not, people with severe TBI’s suffer from long-term psychological limitations which will require long-term support from a mental health and cognitive perspective.

Speech language pathology is often recommended to address a person’s cognitive communication difficulties arising as a result of their brain injury and post-concussive symptoms.

Neuro-optometry needs to assist with dizziness, disorientation, visual motion sensitivity, motion sickness, nausea and headaches could certainly be recommended in brain injury cases

Rehabilitation therapy intervention is also often recommended to assist brain injury victims with receiving rehabilitation therapy support to implement functional goals and increase their level of functioning both at home and in the community.

Lastly, for a person who suffered serious physical injuries as well as brain trauma, other services such as a multidisciplinary chronic pain management program could be recommended to assist the person if he or she struggles with chronic pain on a daily basis.

General damages for pain and suffering – In Canada, pain and suffering compensation is also known as “non-pecuniary damages”. It is a type of non-economic loss that is paid to an accident victim to help compensate them for their physical pain, psychological pain, loss of enjoyment of life and loss of amenities. It is money that is awarded to compensate the victim for direct physical and psychological effects arising from the accident.

How is pain and suffering compensation decided?

In a case called Stapley v. Hejslet, Judge Kirkpatrick  set out a useful, non-exhaustive list of factors that offer guidance as to what may influence an award of non-pecuniary damages. The list includes the:

(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life.
(g) impairment of family, marital and social relationships;
(h) impairment of physical and mental abilities;
(i) loss of lifestyle; and
(j) the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff.

With those considerations in mind, judges can assess the compensation which you are entitled for your pain, suffering, and loss of enjoyment of life, for the injuries you suffered as a consequence of the defendants’ carelessness.

Economic Losses: if you are unable to work because of a severe traumatic brain injury, you may be entitled to claim compensation for your lost wages. The claim can be framed as what is called an “economic loss”  or a “loss of economic opportunity”. In the normal course of events, our brain injury lawyers would obtain something called a vocational study or a vocational situational assessment, which typically outlines a client’s vocational history, job duties responsibilities and requirements, vocational testing, a clinical review and an opinion as to whether or not the client is completely disabled from any suitable employment, given his or her neurocognitive functional limitations.

The person that is hurt is entitled to claim past wage losses up to the time of settlement or trial as well as future wage losses until retirement. The wage losses are calculated by determining what he or she would’ve made if the injury had not occurred. Then, that financial assumption is reduced by money that the client actually receives, such as long-term disability or CPP disability.

If you or a loved one has suffered a severe brain injury, our brain injury lawyers can help.

Matt Lalande is a personal injury trial lawyer who has been representing brain injury victims and their families since 2003. We have seen firsthand that living with a traumatic brain injury is terribly life-changing. We have represented clients who have suffered severe cognitive consequences, severe psychological consequences, severe emotional consequences and severe physical consequences as a result of severe traumatic brain injuries.

Accident victims who have suffered very severe brain injuries need experienced and expert representation to help guide them through the legal system, or the complex insurance system, and to ensure that they recover the maximum compensation that they are entitled to receive. Financial protection is an absolute necessity for people that suffer traumatic head injuries – and our firm can make sure that you and your family are protected, and are able to move forward comfortably in your financial affairs.

Call our brain injury lawyers today no matter where you are in Ontario at 1-844-LALANDE or local in the Hamilton / Niagara / Burlington region at 905-333-8888. Alternatively, you can chat with her live chat operator 24/7 and she will be pleased to ensure that you speak to us as soon as possible.


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Sources

helan-Goodinson R, Ponsford J, Johnston L, Grant F. Psychiatric disorders following traumatic brain injury: Their nature and frequency. Journal of Head Trauma Rehabilitation. 2009;24(5):324–332.

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Waljas M, Lange RT, Hakulinen U, et al…. Biopsychosocial outcome after uncomplicated mild traumatic brain injury. Journal of Neurotrauma. 2014;31(1):108–124.

van Zomeren AH, Brouwer WH, Deelman BG. Attentional deficits: The riddles of selectivity, speed and alertness. In: Brooks N, ed. Closed head injury: Social and family consequences. Oxford, England: Oxford University Press; 1984;74–107.

Testa JA, Malec JF, Moessner AM, Brown AW. Predicting family functioning after TBI: Impact of neurobehavioral factors. Journal of Head Trauma Rehabilitation. 2006;21(3):236–247.

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