The document discusses the role of occupational therapists in brain injury litigation. Some key points: 1) Occupational therapists work with brain injury patients to help them relearn skills and adapt to their new condition, focusing on all aspects of their lives. 2) Therapists become involved in litigation when patients struggle with daily tasks, relationships, work, and identity due to their brain injury from an accident. 3) The principal aim of litigation is to establish what the patient has lost financially and in well-being due to their brain injury. Therapists provide evidence for this by setting goals with patients and tracking their progress.

1. 6 Personal Injury Law Journal September 2016
Occupational therapy and the
litigation process
Laura Slader is an
independent occupational
therapist specialising in
the rehabilitation of people
with catastrophic brain
injury
A
sk most people what an
occupational therapist is and
they will probably answer,
‘someone who helps people with
their occupation’. Yet they usually
do not know what this means. I
work with people who have suffered
injury or illness and need support to
lead independent, productive and
satisfying lives. I help them back
into work or daily routines through
the use of purposeful activity. My
specialism is in the area of brain
injury rehabilitation. My clients
may have just been discharged from
hospital or be referred to me a year
or so later but are suffering mental,
emotional and physical problems
as a result of their injury. I help
them re-learn the skills necessary
to manage everyday tasks and
work-related activities so they can
adapt to their new condition. In
order to achieve this, occupational
therapy (OT) must take account
of all aspects of a person’s life.
When does an
occupational therapist
become involved in litigation?
My clients struggle to live the life
they did before their accident.
They experience problems at work
or may already have lost their job.
Their relationships at home are often
under pressure or have completely
broken down. They find they cannot
manage money anymore and begin
falling into debt. They have lost their
sense of identity and role in their
everyday life.
The head injury patient or
their families investigate litigation
knowing the difficulties they are
experiencing were caused by their
accident. Once a client receives the
first interim payment the rehabilitation
process can progress. In some cases
they will have received NHS therapy
services at the acute stage or are
coming to the end of their inpatient
treatment and there is no further
NHS rehabilitation provision. This
is when I am contacted. My referrals
come through three main sources:
case managers hired by solicitors to
oversee a case; solicitors themselves,
or through the client directly.
A case manager will contact me
after carrying out an immediate needs
assessment. This lists everything
about the patient from their medical
care and living environment to their
social and financial situation. It will
include information about therapy
they might already be having and
makes recommendations for the client’s
ongoing support that comprises three
therapeutic areas: psychological,
physical and behavioural. The case
manager will ask me to provide costs
for an initial assessment and treatment
for 12 weeks. It is difficult to gauge
the length of therapy that will be
required until I have met the individual
concerned but generally independent
OT fees range between £80-£120
per hour, depending on the amount
of travel required or whether a
meeting or session is face-to-face
or over the phone. The fees are
agreed at the start of a period of
rehabilitation and added to the
claims schedule.
When I am hired directly by a
solicitor I will be sent brief information
about the client. Solicitors want me
to reach my own conclusion about
BRAIN INJURY
‘During a litigation case
medical experts are brought
in to predict loss of
earnings and what support,
care and equipment will be
required in the long term.’
Independent occupational therapist Laura Slader outlines the
role occupational therapy plays in brain injury litigation

2. Personal Injury Law Journal 7
BRAIN INJURY
September 2016
the level of therapy required and
will often not share existing expert
reports. The solicitor’s principal aim
is to gather evidence to establish
what that person has lost in terms
of finances and wellbeing as a result
of the brain injury.
When clients contact me
directly they are managing their
own interim payment and deciding
for themselves which treatments
to fund.
Whichever way the work reaches
me, my patients will all be suffering
the symptoms of brain injury which
are negatively affecting their lives.
They will have been through the
acute stage of recovery, having
been medically or surgically treated
in hospital. They will have been
discharged with the expectation that
they pick up where they left off, but
the trauma they have experienced
has been so great they find they
cannot do this. There are often other
complications: their hand may not
work as effectively as it did before;
their vision may have changed; they
are forgetful; they are fighting
fatigue; they are struggling with
headaches or they may have balance
issues. They have to modify their
lives to accommodate their injuries
and learn new strategies to live
independently again. They do this
in the rehabilitation stage and when
this is complete the focus switches
to maintaining these strategies in
the long-term.
The effect of brain injury
After being discharged from
hospital, the main aim of my clients
is to get back to normal as quickly
as possible. But small activities like
getting out of bed in the morning,
having a shower, getting dressed,
eating breakfast and brushing teeth
leave them exhausted and ready
for bed again. They find they can
no longer process information or
put tasks into a correct sequence.
Their thinking is not clear and their
short-term memory is impaired.
They may not remember if they
have brushed their teeth so they
do it again. Repeating tasks means
everything takes twice as long as
well as contributing to fatigue.
One of the most disabling
conditions for people with a brain
injury is fatigue. When a bone
breaks it can be put in plaster
and healed but the brain cannot
be allowed to rest in this way.
We use it for everything – breathing,
talking, seeing, feeling, hearing and
walking. It is why people can be
put into an enforced coma if their
brain needs time to heal ie from
swelling on the brain – to give the
organ time to rest and recover.
Most of the patients I treat leave
hospital while their brain continues
to repair itself. The effect of not
allowing the brain to rest hinders
recovery.
The impact of
occupational therapy in
achieving positive outcomes
In neuro-rehabilitation it is
definitely not the case that one
size fits all. I tailor a programme
for each client using an approach
based on Maslow’s hierarchy of
needs that looks at the theory of
human motivation. I also use the
Model of Human Occupation, a
widely used frame of reference in
occupational therapy that defines
human occupation as the doing of
work (voluntary or paid), play or
activities of daily living within a
temporal, physical and sociocultural
context. I focus on the things that
make up everyday life and keep
my client central at all times.
With each new client I carry out
a standard OT Assessment of Motor
and Process Skills or AMPS. This
looks at a person’s efficiency, effort
and safety performing everyday
activities and highlights problems
with their motor and process skills.
I use this evaluation to explain
to the case manager, solicitor or
client where I believe the problems
are. I might also suggest other
therapies I feel would benefit that
person.
As well as conducting this
assessment I work with my clients
to set goals. Creating something
tangible to work towards provides
a valuable insight model of therapy
that helps clients confront their
limitations in a supported environment.
The goals can be anything from getting
back to work so they can earn money,
to improving their sleep patterns.
They can often be much more
ambitious. I have a ‘never say never’,
‘blue skies,’ approach. I know that
once the process of working towards
the goal is underway, I will be able
to look at every interaction with
the flexibility to explore what might
lie behind the barriers to achieving
the goals and therefore grade them
appropriately so that they become
more realistic and in time provide
a positive outcome. It could be any
one of a number of cognitive or
behavioural issues, social-emotional
issues or physical issues that can
affect the success of the goal.
A client in denial
Even though a client may initiate
litigation, many people I begin
treating with brain injury are
effectively in denial. They may
know something is wrong but do
not want to acknowledge it or do
not recognise it. They are grieving
for their old life. Their friends and
family are also grieving the person
they knew and loved.
In cases where the brain’s
frontal lobe has been damaged
the person may have lost some
of their awareness as well as
their executive thinking skills.
This common symptom of brain
injury leads to poor insight,
impulsiveness, disinhibition
and poor verbal management ie
abusive or obscene language.
This comes as a big shock to
family members. It is as if their
loved one has been replaced by
a stranger. One of my clients
began saying inappropriate things
to his mother-in-law. His wife
said she no longer recognised
The solicitor’s principal aim is to gather evidence
to establish what that person has lost in terms of
finances and wellbeing as a result of the brain injury.

3. 8 Personal Injury Law Journal
BRAIN INJURY
September 2016
him which is a typical response
from close family. He was morose
and volatile, a changed person
from the man she knew before the
accident.
There are five stages of grief:
denial; anger; bargaining; depression,
and finally acceptance. The therapy
team work through these phases to
support that person to the point of
acceptance. This does not happen
overnight. The time it takes for a
brain-injured person to accept
their condition varies considerably.
Without therapy it can take much
longer. Many of my clients are in
denial. They consent to occupational
therapy often not understanding
why they need it. However, they
engage because they need to
demonstrate occupational problems
for the sake of litigation.
These people struggle to
participate with therapy because,
without the necessary insight into
their changed abilities, they challenge
the rehabilitation process at every
step. What they do not understand
is the harm they are causing to
themselves. By not cooperating,
their financial settlement may not
include provision for long-term
support.
Many clients believe the day
they receive their financial settlement
marks the end of the process. They
drop their case managers, care
package and therapy team forgetting
that their brain injury is a lifelong
condition. When this occurs it is
likely the client will request to
re-engage with OT once they find
they cannot stick to the routines
we have established or are failing
to control their fatigue or excessive
spending. In cutting short the
therapy process they may struggle
to reach the point of acceptance
necessary for a successful recovery.
Blue skies approach
At the beginning when my clients
are most resistant to therapy, my
priority is to identify the one thing
that holds meaning for them in
order to set a goal consistent with
the things that are their priorities
in life. I begin to build their trust
and goodwill through the process
of working towards it. My blue
skies approach underpins this. If
I say that I think their goal is
unachievable they disengage
quickly and hold no trust in my
skills as a therapist.
An example of this was a
client who had been an active
adrenalin-junkie before an accident
while out cycling left him with
broken bones and a brain injury. I
did not see him until two years later
when his family started litigation
having witnessed a complete change
to his personality.
After the accident he had no
enthusiasm or drive. He sat around
at home all day watching television
and putting on weight. He was
depressed, bad-tempered, did not
talk to his children and the relationship
with his wife deteriorated. The only
thing motivating him was a job
someone had given him out of pity
but this led to identifying some
problems. For instance, he repeatedly
made mistakes with a computer
system and claimed he had not
been shown how to use it. He had
in fact been shown three times. He
was not taking notes because he
did not think it necessary and yet
his brain was not learning new
tasks. It was unable to take on and
store new information and his
short-term memory was not
functioning effectively.
His only experience of
occupational therapy had been
on his release from hospital with
the specialist advising him to bring
his bed downstairs and fit the stair
banisters with a proper rail. At our
first meeting, equipment was the last
thing I wanted to talk about. I could
see how resistant he was and knew
that kind of information would
emerge during our time working
together. I asked what would be
the one thing from his pre-accident
life he would most like to do
again and he replied ‘water skiing’.
His boat was parked on the drive
and every time he saw it he was
reminded of the good times. Skiing,
on water or snow, was what held
meaning to him so we set this as
our goal.
He was sceptical and did not
see the point but agreed to go along
with it. We started by looking at
the main obstacles which were his
physical injuries. I consulted other
members of the therapy team. I
asked the physiotherapist whether
it was unrealistic to suggest the
client tries knee-boarding or
wakeboarding instead of being up
on two skis. The physiotherapist
thought it possible so we worked
together and took him to a gym to
assess his balance and improve his
overall fitness.
Then I suggested we take his
snowing skis out of storage. It
was the first time he had seen them
since his accident. We helped him
try them on and he had a tearful
moment as he remembered how
much he had loved the sport. I
recommended we visit a snow
centre with an instructor who
specialises in disability skiing.
This made the client fearful about
falling and injuring himself again
and he struggled to consider
himself disabled. I realised what
was needed was psychological
support to address these fears. He
then had cognitive behavioural
therapy and anxiety management
treatment with the psychologist.
Through working together towards
his goal of skiing, we identified
the physical, psychological and
vocational problems that this man
was experiencing and helped him
come to terms with and understand
them.
During rehabilitation the brain
uses its capacity for neuroplasticity
(growing and connecting nerve
At the beginning when my clients are most resistant
to therapy, my priority is to identify the one
thing that holds meaning for them in order to set
a goal consistent with the things that are their
priorities in life.

4. Personal Injury Law Journal 9
BRAIN INJURY
September 2016
cells) to re-learn and reorganise
by creating new neural pathways.
Changing the way we think and
do things as adults is not easy. It is
much harder for the person with
a brain injury and that is why they
find the process so exhausting. I
continually try to demonstrate the
difference between cognitive fatigue
and physical fatigue. Clients tell me
they can go to the gym for hours
but half-an-hour into computer
work they want to lie down and
fall asleep. This is because they are
using different areas of the brain
to store and remember information.
The effects of fatigue can feel crushing.
It affects behaviour – they may start
avoiding social activities worried
they will feel more exhausted.
Cognitive exhaustion affects the
ability to focus and impairs memory
function. Its effect on emotions is
significant. A person can feel
frustrated, depressed, irritated and,
in some cases, desperate that they
will never feel ‘normal’ again. The
‘filter’ can disappear and this can
lead to an inability to effectively
communicate their emotions.
In complex cases where the
person has no initiation or motivation
we investigate if this is the direct
result of the brain injury ie an
endocrinology change, the effects
of poor fatigue management or
part of their personality which
has become exaggerated through
their brain injury. In these cases
we focus heavily on the psychiatric
and psychology parts of the recovery
process.
Once a goal is set, the steps to
achievement are agreed. With
fatigue management I encourage
the client to keep a fatigue diary;
review the levels of fatigue during
the day and understand the triggers.
I introduce routines incorporating
exercise, leisure, rest, good nutrition
and tools for reducing anxiety.
These strategies help control
fatigue and form an essential
part of rehabilitation.
Goal-setting to gather evidence
As well as helping people come to
terms with their condition, setting
goals helps gather evidence for
claims. I treated a roofer who had
fallen off a ladder. He suffered a
blow to his head and multiple
orthopaedic injuries. In the months
following his release from hospital
he became volatile and struggled
with the smallest tasks.
He was married with young
twins and two older children.
His wife told me he was no
longer involved with childcare or
housework. He was spending too
much money and getting into debt.
He was also putting himself at risk
by attempting dangerous DIY jobs
he could no longer manage. His
balance had been badly affected by
the accident. He had metal plates
in his leg, ankle and elbow and
saw his problems as being purely
physical. He was dedicated to his
physiotherapy but would exhaust
himself and when he arrived home
he was unable to do anything but
sleep.
Like many of my clients at the
beginning, he did not understand
the point of occupational therapy.
During my assessment I discovered
his hobby was car restoration. The
last time he had worked on such
a project was five years earlier. I
presented the idea of a car restoration
project to the solicitor explaining
how it would be a good way of
gathering evidence of the client’s
problems.
The solicitor approved it as an
OT project cost and the client was
delighted. He had just been passed
as safe to drive again. He thought he
would be able to fix the car and sell
it for a profit. He had no idea how
difficult he would find it. I organised
a care worker to act as a buddy to
offer support throughout the project.
Then we launched a staged activity
analysis around a second-hand
car we found on eBay.
I gave the roofer a fixed budget
and asked him to carry out an
assessment of the car to identify
what action was required to make
it roadworthy. One of the task
items on the list he prepared was
to change the existing tyres. I asked
could he repair the existing ones
or did he need to buy a new set?
He said he needed new tyres and
told me that task would be easy.
We set a deadline of four days to
research and buy new tyres. It took
three weeks.
He had not anticipated the
exhaustion. Every time he turned
the computer on to look at the
internet he was overcome with
fatigue. He used huge amounts
of cognitive energy in having to
problem solve and generate ideas.
He had to manage a very controlled
budget and delegate physical tasks
to his buddy when he discovered
he could no longer manage them
himself. He had also not expected
to lose concentration so easily or
to experience such difficulties with
his memory. He forgot websites
he had been looking at five minutes
earlier. Eventually he found a set
of tyres and went to buy them and
discovered there was not enough
money left in his budget.
By breaking down the car
restoration project into smaller
tasks, I used a grading scale to
measure the client’s insight as to
the physical and cognitive challenge
pre- and post-activity. This allowed
me to highlight the areas where my
client most needed help. In doing
the practical tasks he realised for
himself that his injuries were not
just physical. He understood that
he would have to adapt in order to
optimise the way he lived and
required support to sustain a
quality of life. By the end of the
car restoration activity we also
had good evidence of the client’s
capacity to make financial decisions
to provide the solicitor for the
purposes of the claim and the
levels of support he would need
to maximise his independence.
As well as helping people come to terms with their
condition, setting goals helps gather evidence for
claims.

5. 10 Personal Injury Law Journal
BRAIN INJURY
September 2016
Working with medical experts
During a litigation case medical
experts are brought in to predict
loss of earnings and what support,
care and equipment will be required
in the long term. They meet the
client for a few hours and in that
time are expected to establish what
is needed to sustain a quality of life
they previously experienced. A
good medical expert will liaise with
the treating therapists – those of
us who see the client sometimes
weekly and work closely with
them, their families and employers.
They realise there are day-to-day
nuances that can often get overlooked
in reports.
They will phone me and ask
questions. Why has it taken so long
for that person to get back to work?
What else is going on that is not
allowing them to stay in a job? Do
they feel unable to support their
partner who is suffering their own
medical issues? Is their depression
over losing their job affecting their
child who has stopped attending
school in the middle of exams?
The medical expert’s report
should take account of everything
including those details that at first
glance may not appear to be the
result of the brain injury, but on
closer inspection are revealed to
be just that.
Going it alone
The consequences for the person
suffering brain injury who chooses
to handle the litigation claim
directly with their solicitor can
be significant. One client I saw
had only just started implementing
the recommendations that had
been made in a medical expert’s
report three years earlier.
Before her accident she had
enjoyed a long and successful
career in a big city law firm. Her
job was in a front-of-house role
that involved meeting and greeting
people. Everyone knew her and
vice versa. One day she left work
and on her way to the bus stop was
knocked over, broke her leg and
suffered a brain injury as the result
of being hit by a vehicle.
On returning to work following
a hospital stay she began having
problems. Her short-term memory
failed. There were people she had
worked with for 17 years whose
names she could not remember.
She struggled with writing and got
words and letters back to front. In
the evenings she arrived home
from work, collapsed on the sofa
and woke at 3am still in her coat.
By the time she received the interim
insurance payment her main concern
was to keep hold of her job. She
put therapy on hold to concentrate
on that.
Three years later she had been
sacked, divorced and had lost custody
of her children. Although she had a
new job, she was making mistakes –
not recording appointments or
following the systems accurately.
Her new boss put her on probation
before deciding whether or not to
give her a contract and it was this
that prompted her to look again at
the medical expert’s recommendations
that she had ignored.
It was a challenge for her to
understand the report with
the cognitive, memory and
problem-solving impairments
she was suffering. However, she
managed to pull together a therapy
team using her much-reduced
interim payment. A psychiatrist
told her she had depression,
anxiety and post-traumatic stress
and prescribed medication. A
psychologist recommended
cognitive behavioural therapy
and three sessions of occupational
therapy. At the end of our first
meeting she said she felt a spotlight
had come on. Someone finally
seemed to understand what was
happening to her from the description
of her symptoms. For three years
she had felt alienated and
misunderstood. Because people
with catastrophic brain injury
tend not to understand what is
happening to them, they think
no one else does either.
Brain injury: the invisible disease
Without interim insurance payments
this level of neuro-rehabilitation
involving different therapy
specialists is often not available.
The National Health Service
generally offers twelve weeks
community rehabilitation for
people with brain-injury after
they are discharged from hospital.
This is not always through a
specialist community neurological
service. There are often long
waiting lists. It is only after a
significant passage of time that
they realise they are struggling
but by then it is usually too late for
NHS treatment.
One of my roles is to facilitate
a support group for anyone with
a brain injury through the charity
Headway. Many of the people
who attend have not been through
litigation and not had access to
specialist rehabilitation. It is shocking
to learn how many of them have lost
their jobs and have been unable to
find and keep new ones. For some,
their accidents were in excess of
ten years ago. They are only now
coming to terms with the impact
their condition has had on their
lives.
The lack of awareness surrounding
brain injury leads sufferers to feel
isolated and alone. They experience
devastating life events as a result of
their condition and these occur in
addition to the accident that caused
it. If they had access to specialist
services earlier in their rehabilitation
journey this could save years of
unnecessary anguish. The litigation
process is crucial in providing some
individuals with the support, treatment
and advice they require to achieve
a quality of life and manage their
lifelong condition as effectively as
possible. ■
A good medical expert will liaise with the treating
therapists – those of us who see the client sometimes
weekly and work closely with them, their families and
employers.