Psychological and PTSD Claims

Many people experience some level of depression, stress or anxiety at various times in their lives.But if your stress, anxiety or depression was caused by an accident or injury, can you recover compensation for your psychological condition if it impairs your ability to perform your job or to engage in normal, routine activities? Is it necessary that a physical injury be the cause or trigger for a legal claim of psychological injury or post-traumatic stress disorder? These are all questions, issues, and considerations that an experienced psychological damages lawyer from Affinity Law can address for you.

Claims for Mental Distress or Anguish

In many personal injury lawsuits where an injured person is bringing a claim based on the negligent conduct of another person or entity, the claimant will allege damages for medical expenses, lost income, diminished quality of life, pain and suffering, and psychological or mental distress. Mental distress claims can include a wide array of symptoms:

  • Anxiety and stress
  • Depression
  • Phobias
  • Changes in mood and personality
  • Post-traumatic stress disorders (PTSD)
  • Sleeping problems or disturbances
  • Weight fluctuations or inconsistent eating patterns
  • Nausea
  • Diarrhea
  • Chronic fatigue
  • Lack of sexual desire
  • Mood swings, irritability and aggression
  • Lack of interest in social activities
  • Chronic pain

It is necessary that a medical professional relate these symptoms to mental distress so as to prove a causal connection to the accident or incident as being the direct cause of your distress.

Types of Lawsuits Involving Mental Distress

Any personal injury lawsuit can include a claim for mental anguish, anxiety, or distress such as:

  • Car accidents
  • Pedestrian accidents
  • Medical malpractice
  • Product liability
  • Premises liability
  • Wrongful death
  • False arrest
  • Intentional torts—sexual assault, sexual abuse, unlawful imprisonment
  • Sexual harassment

Although not essential to sustaining a viable claim for psychological harm, the more severe the incident or accident, the more credible your claim. Your psychological damages lawyer from Affinity Law can help with proving the seriousness of your injury so that you can collect the benefits to which you are entitled.

Is Physical Injury a Prerequisite?

Physical injuries are not a prerequisite for alleging psychological damages though most cases do involve a physical injury that leads to emotional distress or other psychological harm. You can bring a claim for psychological distress harm against a negligent party if it meets a two-part test:

  1. The emotional or psychological injury was a foreseeable consequence of the defendant’s wrongful or negligent conduct; and,
  2. The psychological injury you are suffering fromis serious enough to be a recognizable psychological condition or illness

A recognizable psychological injury or condition is typically one found in the Diagnostic Statistical Manual (DSM)-VI used by psychologists and psychiatrists when diagnosing patients. If your symptoms fit the criteria of a condition such as post-traumatic stress disorder that is severe or critical enough, you can be awarded certain benefits and your claim can go forward toward collecting additional compensation in a third-party claim. The threshold or standard to pursue a third-party claim for a physical or psychological injury is “a serious and permanent impairment of an important physical, psychological or mental function,” or one that has severely affected your ability to engage in your daily living activities.

Some unusual cases of psychological distress claims that Canadian courts have allowed to continue include:

  • Prison inmates sued the federal government for “uncomfortable detention” wherein they allegedly were denied lack of access to sunlight, a barber, sufficient library resources, and adequate sleep resulting in extreme depression, erosion of self-worth, feelings of hopelessness, and nervous shock.
  • A Calgary resident who sued a grocery co-op after she was banned for shoplifting alleged defamation, shame, loss of family honor, and which led to her husband’s suicide.
  • An Ontario motorist who was allegedly speeding, texting and under the influence of alcohol sued 3 bicyclists whom she ran over and caused serious injuries to one and fatal injuries to another alleged her own psychological suffering including PTSD, extreme depression, and catastrophic impairment and anxiety. She did claim the cyclists did not have lights on their bikes, were not wearing helmets, and were not riding in a “prudent manner.”

Although these claims may seem extreme, there are often issues that news reports do not include that would justify or support reasonable and highly plausible allegations of mental distress. In the majority of accident cases where psychological harm is alleged, there are serious and credible factors that cause injured victims severe distress that diminishes their enjoyment of life and ability to function normally.

How to Prove Emotional Distress

While Canadian courts allow a claim for emotional distress without an accompanying allegation of a physical injury, your opportunity for receiving substantial compensation is heightened if there is a physical injury element. Usually, the more serious or traumatizing the injury, the better chance the claimant has to prove that he/she did suffer emotional distress. For example, a person who suffered a permanent disfiguring scar on her face, or who is permanently impaired and in chronic pain and may never work in his chosen career or pursue a favorite activity has a much more provable claim of depression, anxiety, and distress than someone who alleges a strained back or repairable torn cartilage in his knee has caused him or her extreme anxiety.

While Canadian courts allow a claim for emotional distress without an accompanying allegation of a physical injury, your opportunity for receiving substantial compensation is heightened if there is a physical injury element. Usually, the more serious or traumatizing the injury, the better chance the claimant has to prove that he/she did suffer emotional distress. For example, a person who suffered a permanent disfiguring scar on her face, or who is permanently impaired and in chronic pain and may never work in his chosen career or pursue a favorite activity has a much more provable claim of depression, anxiety, and distress than someone who alleges a strained back or repairable torn cartilage in his knee has caused him or her extreme anxiety.

Other factors that can demonstrate severe distress include:

  • Duration of the condition—the longer you suffer on-going and chronic pain, the more credible is your claim that you are suffering severe emotional distress
  • Related bodily harm or condition—your distress is accompanied by physical signs of distress
  • An extreme underlying cause—you were a victim of a bombing, robbery where you were shot or stabbed, kidnapped, raped, or survived a car accident where one or more persons in your vehicle died or suffered gruesome injuries
  • Loss of employment—you lost your job as a result of your physical injuries
  • Medical records confirming nature and extent of your injuries
  • Psychiatric or psychologist’s records confirming visits, medications, and therapies
  • Physician’s report confirming your symptoms

If you demonstrate certain physical signs, this can be essential in proving that your psychological distress is real and sustainable. These are difficult claims to pursue that will require the skills of an experienced psychological damages lawyer from Affinity Law or an insurer will likely deny your claim.

Family Law Act

Immediate family membersthat includes spouses, children, siblings, parents, and grandparents can also pursue a separate claim for pain and suffering or emotional harm if a loved one suffered serious and permanent injuries or was killed in an accident. These damages are for the loss of the loved one’s guidance, comfort, care, or companionship.

Post-Traumatic Stress Disorder (PTSD)

A consequence of a particularly distressing or traumatic accident or incident such as a serious car accident,combat, a horrific natural disaster, sexual assault,pervasive sexual abuse or harassment is the onset of PTSD. This is a recognized psychological disorder characterized by feelings of anxiety, panic or fear from a triggering factor that can cause them to re-experience the trauma even if they are not in imminent danger of physical harm.  PTSD can present as intense or serious an impairment as any physical injury.

Assault victims can sue their assailants for emotional distress or PTSD if they exhibit the recognized symptoms in civil court, even if the defendants are not prosecuted in criminal courts. The civil standard for holding a defendant liable for civil damages is less than that for criminal defendants and is not dependent on the defendant being found criminally responsible. Along with seeking damages for emotional distress, a victim can also pursue damages for lost income, medical expenses, and any other financial losses attributed to the defendant’s negligence or criminal conduct.

Mental health professionals have classified PTSD and its symptoms into 3 distinct categories:

  1. Re-experiencing symptoms and suffer flashbacks and nightmares
  2. Intentionally avoiding symptoms—staying away from triggering events that can revive the traumatic incident, experiencing memory loss, emotional numbness, avoiding social contacts
  3. Hyper-sensitivity—overly sensitive, quick to anger, being constantly on edge, trouble sleeping

Car accident victims may suffer injuries that extend beyond the physical ones. It is not uncommon for an injured claimant to experience panic, anxiety, an extreme reluctance to drive a car or even be a passenger. This can cause substantially interfere with a person’s enjoyment of life or ability to engage in routine, daily activities. However, insurers typically are skeptical of PTSD claims and will require significant proof and medical or psychiatric documentation that you are indeed suffering form this condition and that it is severe enough to interfere with your ability to perform your job or to engage in routine, daily activities. For this reason, retaining a PTSD lawyer from Affinity Law soon after your accident can prevent any rejection or delay in receiving benefits.

Car accidents are the most prevalent incident that leads to PTSD in those claiming emotional harm in lawsuits or claims since they are the most common personal injury claims. This is unsurprising given the millions of cars on our highways and roads every day. Some estimates are that 10% of car injury victims experience PTSD to some degree. Risk factors that can precipitate PTSD from a car accident include:

  • Severe or traumatic car accidents
  • A serious physical injury
  • Other vehicle occupants were severely injured or killed
  • You felt that your life was threatened
  • You may have had a prior traumatic experience
  • There is a history of mental illness
  • You mentally re-experienced the trauma shortly after the accident
  • There is a history of drug and substance abuse that has unduly influenced your mood and behavior

There is a family history of PTSD

Limits on Damages for Pain and Suffering or Emotional Distress

Damages for pain and suffering, which includes psychological or emotional distress, in Canadian courts are limited. Before your claim is even eligible for a non-pecuniary (non-economic) award, you must prove that your psychological injury in this case has resulted in “a serious and permanent impairment of an important physical, psychological or mental function.”

If your claim meets this threshold test, then your non-pecuniary damages award is statutorily limited to a current cap of $380,912, a figure that fluctuates annually depending on the rate of inflation. However, your award in an Ontario court is subject to a deductible of $38,818 unless your award for pain and suffering is at least $129,395.49 as it currently sits. For example, if you are awarded $100,000 for emotional distress, it will be reduced to $61,182.00. If your award was $40,000, you would receive only $1,182.00. Any award that does not exceed the deductible will result in your not receiving any non-pecuniary damages. There is no cap or limits on economic losses, which includes lost income and medical expenses.

For family members who are able to claim non-pecuniary damages for their loved one’s catastrophic injuries, their damages are subject to a current deductible of $19,409.49, unless their loved one died in which case the deductible does not apply to reduce the award. Their claims, however, must exceed a floor of $64,697.21 before the deductible can be waived. These deductibles increase by a rate of 1.6% annually.

Retain a Psychiatric or Psychological Damages Lawyer

Obtaining benefits for emotional distress or for suffering from PTSD as a result of the negligent or wrongful conduct of another person can be difficult. There are significant barriers to overcome, complicated applications to complete for benefits, deadlines to meet, and medical and other documents to obtain. Having an experienced and dedicated personal injury lawyer from Affinity Law to handle your case from the outset can significantly increase your opportunity to receive benefits and reasonable compensation for your damages.

Call us today for a free consultation at (905) 738-2463.

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