By: Samfiru Tumarkin
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National Post: Not Totally Disabled
By Joseph Brean
The National Post
January 31, 2017
In the summer of 2011, Mitchell Murphy of Nova Scotia was about to start his final year of university in Cleveland when he suffered a terrible accident.
He caught his flip-flop on a restaurant staircase, went over the railing, and fell nearly seven metres to the ground, causing a traumatic brain injury and a spinal fracture that paralyzed him from the waist down.
Unfortunately for Murphy, his Toronto-based insurance company decided he is not quite paralyzed enough for compensation, and so he has launched an unusual lawsuit, fighting for the legal right to be recognized as paraplegic.
With his high-tech rehab, including robot exoskeletons, Murphy’s case raises questions about whether advances in medical technology might skew insurance claims, by easing disability just enough that payment can be denied. It also recalls the case of Victoria Arlen, a one-time gold medal Paralympic swimmer who was judged ineligible for the 2013 Montreal world championships by the International Paralympic Committee because her paralysis, caused by a neurological disease, was not definitively permanent.
“Being penalized for maybe having a glimmer of hope of one day being able to walk again is beyond sad,” she said at the time.
Awakened from a coma a few weeks after the fall, Murphy started on a rehabilitation regime that has strengthened his legs, such that today, five years later, he has slight feeling and function in his upper right leg, but nothing in his left.
“Sometimes I can feel it twitch, but that’s pretty much the extent of it,” he said in an interview.
Being penalized for maybe having a glimmer of hope of one day being able to walk again is beyond sad.
He recently took part in a research trial for an exoskeleton that “pretty much looks like an Iron Man suit,” Murphy said. But his bones and legs are so weak that, in one rehab session, he broke his left ankle simply by standing on it and did not even realize until he came back the next day, all swollen.
In his daily life, he uses a wheelchair and a hand-controlled car, and his home has been refitted to accommodate his disability.
“Initially, I don’t know what my diagnosis was. Personally, I didn’t want to know, because I make my own objectives. My goal was to rehab hard right from the get go,” he said.
Doctors were more pessimistic. His lawyer, Sivan Tumarkin, said they have diagnosed a permanent paralysis in both legs.
“Since the Incident, Mitch does not have functional use of either lower extremity and is wheelchair dependent. He has been diagnosed as a paraplegic,” his lawsuit claims. “Based on all available medical opinions and Mitch’s treating physicians, Mitch meets the definition of Paraplegia under the policy.”
That term, “functional use,” is key to this dispute. The insurance policy defines paraplegia as the “functional loss of use of both of his lower limbs,” and says this loss must be “total and irrecoverable.”
Murphy was covered under his mother Coleen’s employee insurance policy through Minas Basin Pulp & Power, a Nova Scotia company that operated a paper mill until 2012 in Hantsport, N.S.
The insurance company, SSQ Insurance, paid his hospital bill, but denied his paralysis claim, saying he had not proven it was permanent. He appealed and sent in more medical information, and was denied again. His claim says this caused “profound emotional upset and mental distress,” and interfered with his rehabilitation.
Murphy claims SSQ ignored the opinions of his doctors, was biased in its own assessments, failed to hire an independent assessor, failed to reassess in light of new information, and came to its own false and unsupported conclusion that Murphy is able to functionally ambulate.
SSQ took advantage of his economic vulnerability, Murphy claims. The company “was looking for a way to discontinue Mitch’s benefits and took it at first opportunity.”
He is suing for breach of contract, demanding payment of the benefits denied to him, plus $250,000 in general damages because of the stress and anxiety caused by the denial, and $5-million in aggravated damages for acting in bad faith.
Tracey Hamilton, counsel to SSQ, did not return a call seeking comment, but in its defence, SSQ denies acting callously, or in a high-handed manner.
It says it informed Murphy that his medical documentation did not indicate the loss of function was permanent.
Last spring, SSQ wrote to him saying “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.”