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The term ‘subtle’ can mean many different things to different people in different contexts.  Typically, the presentation and symptoms are subtle; the cause may also be subtle. Treating doctors, lawyers, and even their client and their family may not immediately realise there has been a subtle brain injury.  One thing is for sure however, this is a controversial topic and worthy of further discussion.

There is no simple or single definition of a ‘subtle brain injury’ used by all lawyers or clinicians.  There are however several terminologies used to describe a subtle brain injury such as concussion and post-concussion syndrome (PCS), mild head injury, minor head injury, mild traumatic brain injury (mild TBI), minor brain injury, etc, all of which may sometimes be used interchangeably.

PCS symptoms can begin to occur within days, although in most cases will often resolve within a few weeks. However, in some individuals, symptoms can persist from months to years following injury and may even be permanent.

Whilst there is no universally accepted definition for PCS, most injured people will report at least three of the following symptoms:

  • Headaches
  • Dizziness and/or light headedness
  • Fatigue
  • Irritability
  • Impaired memory and concentration
  • Disturbed sleep / insomnia
  • Sensitivity to light and sound
  • Inability to multi-task

However, conflicting literature, the varying degree of symptoms, as well as the absence of physical damage to the brain, make PCS a controversial topic which often leads to tricky evidential issues for lawyers representing claimants in personal injury claims.

Several theories exist as to the development of PCS, not limited to the physical impact and mechanisms of the initial injury. For example, an injured person may have a predisposition or vulnerability to developing PCS such as pre-existing psychiatric disorders, poor coping skills and illness perception. Of course, one must take their victim as they find them so if a pre-existing condition has contributed to the development of PCS, it would be unreasonable to penalise the injured person with a reduction in their damages.

The risk of PCS does not appear to be associated with the severity of the initial injury and does not require the individual to have lost consciousness (although from an evidential perspective loss of consciousness does enhance the prospects of establishing causation).

Sometimes, although the injury is subtle, it will more properly be classified as a moderate or even moderate/severe brain injury. Experts often use the Mayo system of classification for traumatic brain injury (‘TBI’): which classifies along the following broad lines:

Classification GCS Loss of consciousness Length of post-traumatic amnesia Abnormal structural imaging
Severe TBI 3-8 Over 30 mins Over 24 hours Present
Moderate TBI 9-12 Over 30 mins Under 24 hours Not present
Mild TBI 13-15 Under 30 mins Under 24 hours Not present
No brain injury 15 None None Not present

Different classifications do exist with other bodies but from an evidential perspective, it is important not to become overly concerned with the classifications – the importance is how the injury affects the individual, specifically regarding their earnings capacity. It has been found that only around 10% of reported mild head injuries/concussions involve a loss of consciousness, so it is important to not solely rely on this as an indicator as to whether a brain injury has been suffered.

Causes of subtle brain injuries and PCS

There can be several different causes of subtle brain injuries and PCS, such as:

  • Direct trauma to the head causing the brain to shake inside the skull leading to mild damage
  • Whiplash type acceleration/deceleration injuries causing shaking or violent forces
  • Multiple concussions from repeated blows to the head such as those found in boxing, rugby and football
  • Diffuse axonal injury, which is a traumatic brain injury that produces brain lesions in the white matter of multiple areas of the brain. These injuries should always be considered severe, but can be subtle
  • Poisoning
  • Drug use/abuse
  • Neurological illness/disorders, infections, tumours etc
  • Lack of oxygen

In every case where there is a suspected brain injury, medical records will be key, along with and to a lesser extent, witness statements from your client, family members and friends. Consideration should be given to the impact on employment and accordingly, witness evidence may be required from your client’s line manager or colleague(s) dealing with pre-accident and post-accident performance comparisons.

In many claims involving personal injury, you may already have an early admission of liability. One should not dismiss the need to gather all the evidence available relating to the accident circumstances in case there is evidence of an obvious head injury, such as photos of the accident scene, CCTV and independent witness statements from those first at the scene.

Save for any other injuries suffered by your client, you may wish to start by obtaining a medical report from a neurologist followed by a neuropsychologist or neuropsychiatrist depending on any recommendations made by the instructed neurologist, and depending on the nature of the symptoms complained of by the injured party.

It is necessary to understand the differences between a neuropsychiatrist and neuropsychologist. A neuropsychiatrist expert witness will have studied medicine before choosing to follow a path into psychiatry and then neuropsychiatry. These are highly trained specialists with an immense knowledge of their subjects. A neuropsychologist is similar to a neuropsychiatrist in the sense that both professions focus on behavioural outcomes as a result of brain damage and other neurological conditions but where they do differ slightly is the approach they take in treating patients.

Whereas a neuropsychiatrist may adopt a purely medical approach by prescribing medication, a neuropsychologist may instead adopt a more rehabilitative approach to patients / claimants.

Furthermore, these experts may deem it necessary to carry out their own neurologically based assessments on individuals in order to determine the extent to which their mental health and cognitive function has been compromised as a result of the apparent brain injury.

Making a claim for post-concussion syndrome or a mild traumatic brain injury can be complex, as in many cases it is not well understood by medical professionals. This is because it is sometimes difficult to diagnose the condition based on the presenting symptoms and therefore identifying the consequent brain injury.

Long term symptoms can have a significant impact on individuals’ lives and can affect family, social and work relationships. Individuals must sometimes restructure their lives to avoid activities which aggravate their symptoms. They may need to change their social life to avoid loud, bright and crowded situations or request their employer makes reasonable adjustments to their working life. Family and friends need to be educated as to situations which can promote the onset of symptoms in order to help avoid them, and not make individuals feel isolated because of their symptoms.

All symptoms as a result of a blow to the head are potentially reversible if identified and diagnosed early, with the necessary support from friends, family, employers and medical practitioners.