Written By: Jamie Davison, Associate and Sara Ferro, Summer Student
8 Minute Read
Introduction
In many brain injury claims in Ontario, the primary issue can be not whether a crash occurred, but rather whether the resulting symptoms and long-term effects of the brain injury are significant enough to support a brain injury lawsuit. It is for this reason that brain injury claims are frequently challenged and become credibility disputes. For more information on how to recognize symptoms of a brain injury, see our previous blog Recognizing Signs of Traumatic Brain Injury After an Accident.
The focus of this blog is why brain injury symptoms are often questioned by insurance companies, emphasizing the importance of credible brain injury evidence, and explaining how personal injury lawyers can help you navigate a brain injury lawsuit in Ontario.
Why Brain Injury Symptoms Are Often Challenged
When you think of an injury, you likely think of a physical one, such cuts, scrapes, or broken bones. Brain injuries are unique in that they are often invisible. Unlike a readily apparent physical injury, a brain injury may present as memory issues, difficulty with word-finding, emotional lability, constant fatigue, or difficulty concentrating. These kinds of symptoms are difficult to objectively measure, and this is precisely why brain injury claims can be challenging. It is also why an insurance company is more likely to dispute the severity of a brain injury. To learn more about the different types of brain injuries, see our previous blog Types of Traumatic Brain Injury.
Why Brain Injury Cases Can Become Credibility Disputes
The lack of objectivity when measuring brain injury symptoms opens the door for insurers to question the extent of those symptoms or limitations. This is at the crux of most brain injury credibility disputes. For example, if the injured party is claiming they are constantly fatigued because of their brain injury, an insurer will attempt to poke holes in that claim by attributing the fatigue to other aspects of the individual’s life. An insurer might also point to any pre-existing conditions that make the individual vulnerable to chronic fatigue, further undermining the claim. These challenges highlight the importance of strengthening the credibility of brain injury evidence.
The Types of Evidence Used to Support a Brain Injury Claim
There are various forms of brain injury evidence that can assist in building a credible claim. Examples that help support a plaintiff’s brain injury claim include:
- Medical records
- Neuropsychological testing
- Witness evidence
- Employment and academic records
Together, this wide range of evidence can paint a picture of how the injured person is behaving in a way that they would not be behaving, if not for their brain injury. Medical reports and neuropsychological testing can establish objective findings that a serious brain injury has taken place. Whereas witness evidence from friends and family, employment records, and academic records bolster the medical evidence because they speak directly to how the plaintiff’s day-to-day life has been impacted.
Where Consistency Meets Credibility
While medical records can strengthen a brain injury claim, a standalone record can be insufficient. It is a multiplicity of medical records with consistent findings that truly strengthen the credibility of a brain injury claim. To put it into perspective, a single doctor diagnosing a brain injury may carry weight, but a team of five specialist, each with their own expertise relevant to the claim, documenting the brain injury symptoms over an extended period of time, builds a mountain of credible evidence that is difficult for an insurance company to overcome.
It is also important to note that while consistency is extremely important, the credibility of the medical practitioners themselves can play a significant role in the outcome of the case. Researching the qualifications and backgrounds of medical practitioners can help ensure that the professionals supporting the brain injury claim are not only qualified to do so but are also well-established in the medical field.
The Role of Family, Friends, and Employers
Medical practitioners make compelling witnesses to brain injury lawsuits, but third-party observations can also provide valuable support to brain injury claims. After all, who can speak to the behavioral and cognitive changes of a claimant better than a family member or employer who saw them every day before and after the accident? These witnesses are uniquely positioned to speak to who they were before the injury, and how they’ve changed since, directly supporting the argument that the symptoms were caused by the brain injury.
Common Arguments Raised by Insurers
One of the most common internet searches after someone has filed a brain injury claim is “the insurance company doesn’t believe my injury”. The reality is, it may not be that the insurance company outright disbelieves the claimant but rather that the evidence does not sufficiently support their brain injury claim.
Insurers can challenge a brain injury claim in a variety of ways. They might question the severity of the injury, the credibility of witnesses, or as previously mentioned, attribute symptoms to pre-existing conditions. Insurers may also take tactical steps to undermine their case. For example, they may obtain surveillance in attempt to document the claimant behaving in ways that contradict claims they have made about their health, or send the injured party for Independent Medical Examinations (IEs). In some cases, an insurer might even accept that a brain injury exists but argue that it doesn’t impact the injured party’s ability to perform activities of daily living.
How Lawyers Help Address Credibility Disputes
Regardless of the challenges put forth by insurers, personal injury lawyers can overcome them with a tailored legal strategy built around collecting credible and consistent brain injury evidence. Your lawyer will order neuropsychological testing and functional assessments, retain highly qualified medical experts, and ask the right questions of family members and friends to support you with the strongest evidence possible.
Conclusion
Successfully proving a brain injury claim requires far more than obtaining an expert witness. To succeed, all brain injury evidence must come from credible sources and reflect consistent findings that bolster the overall strength of the case. If you or someone you know has suffered a brain injury that is being challenged, our team is here to help. Contact us today to further understand how brain injury evidence is used to best support your claim.
