Injured man not paraplegic enough

February 14, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

In a stunning decision by an insurance company Mitchell Murphy of Nova Scotia has been deemed ‘not paralyzed enough’ to qualify for benefits. In 2011 he was going down a flight of stairs and caught his flip flop on one of the steps. He tripped and went over a railing falling over 6 metres to the ground.

His fall resulted in a traumatic brain injury (TBI), and a spinal fracture which resulted in paralysis below his waist. His impairments are life long. Given his young ae and his determination though, he has undergone intensive and high tech rehab. In the process, he has broken an ankle. He wasn’t aware of the fracture though for a day until it became visually obvious as he has not feeling in his leg. With his exoskeleton he is able to move a few steps. He has some feeling in an upper leg. He has an electric wheelchair, and his house has been retrofitted.

At the time of his accident he was inured under his mother’s workplace policy. The insurance company paid the hospital bill, but has gone on to deny the paralysis claim as Mr. Murphy has not proven the injuries are permanent. He appealed their decision and sent more medical information only to be denied again. The Insurer, SSQ, argues that that Mr. Murphy does not meet the definition of paraplegia in the policy which is defined as ‘the functional loss of both of his lower limbs….which is total and irrecoverable’.

Mr. Murphy has now been left with no alternative but to sue the insurer SSQ for breach of contract, asking for $250K , payment of denied benefits, and $5 million in aggravated damages for acting in bad faith. He claims that his insurer ignored his doctors’ medical opinions, that had a bias, that they didn’t hire IEs, and failed repeatedly to reassess his claims in light of new information. Mr. Murphy has been left to pay for rehab out of his family‘s pocket.

The insurer SSQ has taken the position that Mr. Murphy’s medical assessments do not indicate that his loss of function is permanent. They wrote him in 2016 informing him:

“it is apparent that the Plaintiff is able to ambulate with the use of assistive devices and therefore the provision of ‘total and irrecoverable loss of use’ in accordance with the Policy has not been satisfied.” It also claims Murphy has “failed to mitigate his damages” by “failing to seek and follow all recommended medical advice and treatment.” http://bit.ly/2kPF9SR

Mr. Murphy’s lawyers argue that if he doesn’t qualify as paraplegic then who does? The case raises some interesting question about the impact of technology on paralysis claims.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.