Accidents in themselves can be terrifying. Coping with the financial impact of a wage earner’s absence from the workforce is stressful. The injured are typically in pain, sometimes chronically, and their sleep is often disrupted. Prolonged recovery periods or coming to terms with permanently reduced functioning can be tremendously challenging. Often an injury puts additional stress on family members and their relationship and sometimes leads to caregiver burnout.

When psychologists or psychiatrists diagnose a person with a particular psychological injury, their reference point is a medical text referred to as the DSM-5 (Diagnostic Statistic Manual of Mental Disorders). This text lists all known psychological illnesses and describes the symptoms required to meet the diagnosis. The most recent version, version 5, was developed with hundreds of international experts and more than ten years of research and debate. It is the authoritative diagnostic text in psychiatry.

Psychological injuries do not generally have biological markers, so diagnosis is made based on trained clinical judgment, often informed by standardized questionnaires, insight from the medical records, and sometimes interviews or statements from co-workers, friends, teachers etc. Some tests are designed to assess the sincerity of the injured person’s answers or the extent to which answers are exaggerated. Often insurance companies will use poor scores on such validity tests to attack an injured person’s credibility, so it is crucial to be sincere when answering the questions.

Following an accident, we commonly see individuals who suffer from the following:

• Anxiety Disorders
• Phobias
• Post-Traumatic Stress Disorders
• Adjustment Disorders
• Somatic Symptom Disorders
• Major Depressive Disorders
• Neurocognitive Disorders
• Personality Disorders

However, more rare forms of psychological injuries can also be caused by an accident. For example, we have successfully represented individuals who developed psychosis or Schizophrenia following a collision. Often such cases involve a significant investigation. Our role is to retain highly qualified and respected experts in psychiatry and develop a fulsome evidentiary record for them to review. For example, in the case of Schizophrenia, a person’s stress response to trauma can be the trigger for the first psychosis. However, the psychosis may not occur immediately. It may occur within several months following the collision. People are often guarded about such things as hearing voices and often do not report the phenomenon immediately. So, it is critical to scour the medical records for subtle signs of a person’s inability to test reality and to interview friends, family, and neighbours for the first signs of psychosis. In one of our cases, the first signs were hearing what was perceived as a raccoon in the rafters, which was plausible, except that our client’s father could not convince his daughter that there was nothing to be seen in the rafters even after an inspection.

The law does not expect people to be free from injury or illness before an accident. Quite often, people have pre-existing psychological health conditions. Sometimes these events are related to a discrete event, like job loss or a divorce, and the condition often resolves. Other conditions are long-standing, such as a generalized anxiety disorder, mild depression, or attention deficit hyperactivity disorder.

At law, it is not the significant diagnosis but the change in your ability to function caused by the accident. Someone with mild depression may work full time, have a family, coach his daughter’s soccer team, and manage well on anti-depressant medication. Then, following an accident, that depression may deepen and then absences at work occur or lengthen, participation with the family diminishes, hygiene diminishes etc. A lawsuit primarily tries to restore a person’s lifetime financial trajectory, and it tries to provide funding for future treatment and services to diminish the impact of an injury. Accordingly, the most important in a lawsuit is the change in a person’s ability to function following an accident and the economic consequences of that impaired ability to function.

Typically, insurance companies try to establish that a person’s current level of function results from a prior psychological injury. This leads to an interesting debate between legal doctrines with historically crass titles: “thin skull” versus “crumbling skull.” The thin skull doctrine recognizes that some people are more vulnerable to the effects of injury than others and that those who harm a more vulnerable person are nevertheless responsible for the full extent of the injuries. The crumbling skull doctrine holds that if a pre-existing condition was bound to worsen, then the defendant is only responsible for the losses caused during the time that the condition was accelerated. In psychological claims, often, the insurer will acknowledge a brief period of disruption but will ultimately blame the current status of the injured person on prior conditions.

Much of this debate is beyond the control of anything the injured person can do. Experts will have their opinions. However, the injured person can work with their injury lawyer to identify people who can give statements about the injured person’s level of function before the accident. The opinions of an expert about what a person was like are typically no match for a variety of people coming forward to describe their interactions with the person before the accident.

The other critical help the injured person can provide is their own sincerity in acknowledging their prior injuries. Cases involving psychological injuries put the injured person’s credibility at the forefront. Accordingly, it is critical to be sincere about your prior health issues.

Advancing a claim for personal injuries means that you are claiming that the accident caused a significant change in your ability to function physically, mentally, and emotionally. It begs the question, what was your level of function before the accident? Both parties are entitled to know the answer, and under the provincial regulations that govern civil court proceedings, called the Rules of Civil Procedure, once you have started a lawsuit for your injuries, you are obligated to provide copies of relevant records. Conventionally, this means the last three years of your health records before the accident is disclosed, but it can extend further back if those records are relevant.

At Boland Romaine, we insist on controlling the disclosure process. This means that we do not let the insurance companies have the authorization to gather the records themselves. We take that cost on ourselves. We review the records before they are disclosed. If there are particular records that have a unique sensitivity, or if you are aware of such records, then it may be that it is not proper for them to be disclosed. In some circumstances, the records are not relevant or unduly embarrassing. We have frequently attended motions court to oppose an insurance company’s motion for disclosure of records we thought were irrelevant and have been successful.

In a lawsuit, it is not the diagnosis but the change in your ability to function that matters. While not meeting a full-scale definition will have implications for the experts who rely on case studies and clinical experience to gauge the severity and to make predictions into the future, and diminishes the persuasive value to a person who doesn’t need to meet the full diagnostic criteria to have a successful claim.

Lawsuits try to restore you to the financial position you would have been in had the accident not occurred. If psychological symptoms reduce an injured person’s ability to earn income or increase an injured person’s care needs, then there is a claim.

In the 2017 Supreme Court of Canada case Saadati v. Moorhead, 1 SCR 543, the Court said, in paragraph two, “This Court, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now.”