Mild Traumatic Brain Injury (MTBI) is often hotly contested by ICBC and other insurance companies after a car accident. In this case the judge accepted the diagnosis. She had the benefit of hearing from two neurologists who had conflicting opinions on whether or not the claimant suffered a MTBI. The defence neurology expert, Dr. Rehan Dost, was of the opinion that he did not. Dr. Dost was eager to assist the court in assessing the credibility of the claimant and he was combative in his critique of the other expert’s opinion. Dr. Dost’s  opinion on brain injury was rejected by the court.

This personal injury case arose from a motor vehicle accident which occurred when two vehicles exiting parking lots and each turning left onto Cook Road in Richmond, to head in opposite directions, collided (Mayer v. Umabao, 2016 BCSC 506). The claimant gave a statement to ICBC after the motor vehicle accident. The claimant knew he was preparing it for the purpose of the lawsuit nonetheless the statement makes no reference whatsoever to hitting his head or dizziness or imbalance. When asked about this and whether there was something missing from the statement he said “I believe there was something missing from the statement”.

Dr. Dost, neurology expert for ICBC, referred to several definitions in his report and in his evidence from MTBI. Dr. Dost says that all of the definitions agree on the first three criteria:

a)    There has to be a transmission force neurological dysfunction or in other words there has to be a force significant enough to cause a neurochemical change in the brain;

b)    There has to be neurological impairment at the time of trauma; and

c)     The neurological impairment cannot be explained by some other cause, for example stroke, drug or alcohol impairment, psychological disorder etc.

The Court rejected Dr. Dost’s differential diagnosis of acute vestibular syndrome because it disregarded the similar symptoms of dizziness and imbalance that the claimant suffered at the accident and in the months following.

Anxiety and somatoform disorder was found to explain some of the claimant’s cognitive difficulties but not all.  The claimant’s cognitive difficulties were unusual because his nonverbal intellectual abilities were in the superior range but his verbal intellectual abilities were just below average level. It was more likely than not that the unusual configuration was caused by trauma.

Pain and suffering, Non-pecuniary damages,  are awarded to compensate a calaimant for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to be considered when assessing non-pecuniary damages include: a) age ;b) nature of the injury; c) severity and duration of pain; d) disability; e) emotional suffering; f) loss or impairment of life;   g) impairment of family, marital and social relationships; h) impairment of physical and mental abilities; and i) loss of lifestyle.

The ICBC lawyer submitted that the appropriate award for pain and suffering would be in the range of $40,000 to $85,000. The judge disagreed.  The claimant’s brain injury was subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he was found to be a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests.  The judge concluded that ther claimant was entitled to an award  of $175,000 for pain, suffering and loss of enjoyment of life.

The total award was over $400,000 broken down as follows:

Pain and Suffering award $175,000
Future loss of earning capacity $250,000
Future cost of care $12,140
Out of Pocket Expenses $5,980.16
Lawn care $3,000
TOTAL $446,120.16

Learn more about MTBI? Watch our guest Neurosurgeon 1.5 minute talk:

Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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