What is concussion vs. post-concussion syndrome?
Concussion is a common type of mild traumatic brain injury. It typically occurs due to rotational acceleration of the brain that produces a biochemical injury. Direct impact to the head is not required for a concussion to occur; rather, it can occur even with a simple blow to the chest which causes a whiplash effect on the brain.
Younger individuals and those with pre-existing concussions which have resolved are at greater susceptibility to sustaining a concussion. The most frequent symptoms of a concussion include dizziness, headaches, nausea, imbalance, limb weakness, and, in few cases, loss of consciousness.
Post-concussion syndrome refers to symptoms of concussion which persist for weeks or months. Post-concussion syndrome is more common for individuals who sustain repeated concussions. The World Health Organization defines it as a syndrome that occurs following head trauma (usually sufficiently severe to result in loss of consciousness) and includes a number of symptoms such as headache, dizziness, fatigue, irritability, difficulty in concentration and performing mental tasks, impairment of memory, insomnia, and reduced tolerance to stress, emotional excitement, or alcohol.
How do you prove you have a concussion vs. post-concussion syndrome?
Typically, the diagnosis of a concussion can only be made based on clinical assessment by a physician. There is no known biomarker based on imaging or blood testing which assists in the diagnosis of a concussion. CT and MRI scans generally appear normal after concussions.
Similarly, the symptoms associated with post-concussion syndrome are highly subjective and not specific for the particular condition, which makes clinical diagnosis challenging especially where there is a history of pre-existing conditions or a prior history of problems.
Can you sue for post-concussion syndrome in Ontario?
In order to sue an at-fault driver for damages for pain and suffering following a motor vehicle accident in Ontario, the Insurance Act requires a plaintiff to pass a threshold. More specifically, they must prove that they have sustained a permanent serious impairment of an important physical, mental or psychological function as a result of the motor vehicle accident. The fact that post-concussion syndrome symptoms are typically subjective and not susceptible to diagnostic testing makes passing the threshold for concussion alone somewhat of a challenge.
For example, in Emmanuel et al. v. RBC Insurance Co. et al., 2022 ONSC 1718, the plaintiff suffered a mild concussion, soft tissue injury to the neck, shoulder and back, and depression. The court ruled that the plaintiff had not sustained a permanent impairment of a physical function despite being diagnosed at trial with post-concussion syndrome by two participant experts. The court felt that the opinions of these two experts were based largely on the plaintiff’s subjective complaints and were not supported by any objective evidence. In particular, the failure to assess the plaintiff’s subjective complaints against the available objective evidence in an attempt to test the validity of her assertions was fatal to their credibility. The objective evidence included the fact that the plaintiff was the primary caregiver of three children and was working at a restaurant doing kitchen preparation; therefore, their evaluations did “not seem to probe the inconsistencies between the inherently physical demands of her daily life” on one hand, and her subjective complaints of pain on the other hand.
Nevertheless, despite the inherent challenges in a plaintiff with post-concussion syndrome passing the threshold, it is not impossible. In Legree v. Origlieri, 2021 ONSC 7650, the plaintiff experienced chronic pain, persistent headaches, vertigo, and tinnitus following a motor vehicle accident. Importantly, an expert neurologist in that case opined that the plaintiff suffers from post-concussion syndrome based on both clinical and diagnostic testing. The plaintiff undertook both a brain MRI and SPECT scan. The MRI was normal, whereas as the results of the SPECT scan indicated mild traumatic brain injury which the expert argued supported his clinical assessment that the plaintiff was suffering from post-concussion syndrome. Importantly, two other experts rejected the opinion that the plaintiff was suffering from post-concussion syndrome. The court accepted the first expert’s opinion, thereby demonstrating how diagnostic assessment may be useful in helping individuals suffering from post-concussion syndrome pass the threshold.
However, even without diagnostic imaging, plaintiffs suffering from post-concussion syndrome may still successfully pass the threshold requirement. In Higashi v. Chiarot, 2021 ONSC 8201, the plaintiff was diagnosed with a mild traumatic brain injury, post-concussion syndrome, post-traumatic stress disorder, adjustment disorder, and chronic pain with fibromyalgia caused by a motor vehicle accident. The court ruled that despite the fact that the plaintiff’s complaints were purely subjective, that is not uncommon with traumatic brain injury. What matters is that the plaintiff was consistent in her subjective reporting of the conditions since the motor vehicle accident up until the time of trial, thereby strengthening her credibility and reliability.
How much has the Court awarded for post-concussion syndrome?
In Higashi, the plaintiff was awarded $225,000 in damages for pain and suffering. Prior to the motor vehicle accident, the plaintiff was extremely active and hardworking, and found herself impaired in daily functioning thereafter due to headaches, balance issues, noise and light sensitivities, impaired concentration, and short-term memory problems. Keep in mind that in Higashi, all experts and the court were in agreement with the fact that the plaintiff suffered from post-concussion syndrome. Where there is competing expert evidence, but the court still accepts the presence of post-concussion syndrome and allows the plaintiff to pass the threshold, the damage award may be less. That was the case in Legree where the plaintiff was awarded $100,000 in damages for pain and suffering.
However, this is not always the case. For example, the plaintiff in Graul v. Kansal, 2022 ONSC 1958, was plagued by competing expert evidence but was still awarded $225,000 in damages for pain and suffering where the court found he would never return to work of any kind, was unlikely to drive again, and had significant cognitive injuries along with permanent hearing and visual impairments.
References:
Charles H. Tator, "Concussions and their consequences: current diagnosis, management and prevention" CMAJ, August 6, 2013, 185(11) 975. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3735746/
Emmanuel et al. v. RBC Insurance Co. et al., 2022 ONSC 1718
Legree v. Origlieri, 2021 ONSC 7650
Higashi v. Chiarot, 2021 ONSC 8201
Graul v. Kansal, 2022 ONSC 1958
This blog was written by Carlos Panaro, Summer Student 2022, Bogoroch & Associates LLP.
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