CITATION: Security National Insurance Company v. Hodges, 2014 ONSC 3627
DIVISIONAL COURT FILE NO.: 185/13
DATE: 20140714
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Security National Insurance Company, Applicant
AND:
Manos Hodges and Financial Services Commission of Ontario, Respondents
BEFORE: Then, Aston and Harvison Young JJ.
COUNSEL: Linda Matthews, for the Applicant
Tammy Ring and Marc Flisfeder, for the Manos Hodges
Deborah McPhail and Joe Nemet, for Financial Services Commission Tribunal
HEARD: at Toronto, June 11, 2014
ENDORSEMENT
Introduction
[1] Security National Insurance seeks judicial review of a decision of the Director’s Delegate of the Financial Services Commission of Ontario (“FSCO”) dated February 22, 2013. The Delegate upheld an Arbitrator’s decision that the respondent Manos Hodges suffered a “catastrophic impairment” as defined in the applicable Statutory Accidents Benefit Schedule (“SABS”).
[2] The applicable part of the SABS regulation is s. 2(1.2)(e)(i) of O.Reg 403/96 which provides that “a catastrophic impairment…is…brain impairment that, in respect of an accident, results in a score of 9 or less on the Glasgow Coma Scale…according to a test administered within a reasonable period of time after the accident”.
Facts
[3] On August 5, 2009, Mr. Hodges was injured in a motor vehicle accident around 11:00 p.m. near Goderich, Ontario. His Glasgow Coma Scale score (“GCS”) was recorded many times in the following 13 days. Three scores within about half an hour of the accident were 11 but he was then sedated and intubated for transfer to hospital in London and his score was only 3. For the purposes of this judicial review application there is no issue taken that this score should be disregarded because for this GCS score he was medically or artificially paralyzed.
[4] In the early morning hours of August 6th, Mr. Hodges underwent extensive surgery lasting more than 9 hours for injuries to his diaphragm, liver and legs. His next GCS score was recorded at 2:15 p.m. on August 6th, then hourly thereafter. His scores were 3 or T3. A score with a “T” indicates that the patient could be better than the actual number recorded. During this period, he was being administered analgesic medication as an adjunct to the general anesthetics for the surgery and he remained intubated. For the purposes of this judicial review application, these readings are not relied upon.
[5] The next day, August 7th at 4:30 p.m. the GCS score had risen to 10. It remained at 10 for hourly readings the rest of that day. This first reading of 10 occurred when the tube was removed from his trachea. The respondent accepts that while a person is intubated or otherwise untestable in all three domains of the Glasgow Coma Scale, the GCS score cannot satisfy the legal test. At about that time, a second CT scan was also performed. It indicated some improvement in brain bleeding that had first been detected on his admission to hospital August 6th. Other scores on August 8th and at 1:00 a.m. August 9th were T9, T10 and 10.
[6] However, on August 9th at 2:00 a.m., 3:00 a.m. and 4:00 a.m., the GCS score fell to 9. The Arbitrator and Director’s Delegate found that these scores on August 9th were the qualifiers for a finding of catastrophic impairment within the meaning of the SABS. There is no issue taken by Security National about the accuracy of the recordings or that they were taken by a person trained for that purpose as required by the regulations.
[7] The hospital continued to record GCS scores until August 18th with varying results. The last score on August 18th was 15, indicating no impairment of consciousness. A third MRI on August 10th also indicated continuing improvement with the brain bleed.
[8] Mr. Hodges received statutory accident benefits under the SABS from his insurer, Security National. On October 14, 2009 he applied to Security National claiming that he suffered a “catastrophic impairment” which would entitle him to apply for enhanced accident benefits. Security National denied his application. Following an unsuccessful mediation, the issue proceeded to a hearing before an Arbitrator of the Financial Services Commission. The narrow issue defined by the Arbitrator was whether Mr. Hodges’ brain impairment resulted in a GCS score of 9 or less according to a test administered within a reasonable period of time after the accident.
[9] Security National retained Dr. Henry Berry, a neurologist and expert on the treatment of brain injury to give evidence. Dr. Berry testified that MRI and CT scans are better prognostic tools to scientifically determine brain impairment after the first 24 hours following initial injury. He also testified that 55 hours post-accident is not a “reasonable period” within which to accept GCS scores as indicative of the severity of Mr. Hodges brain impairment. Dr. Berry stated that the three GCS scores of 9 on August 9th were probably not a reflection of Mr. Hodges level of brain injury but attributable to 10 other factors influencing his post-surgical recovery.
[10] Mr. Hodges retained Dr. Harold Becker, a family doctor with expertise in catastrophic assessments, to give evidence to the Arbitrator. Dr. Becker was of the opinion that the brain injury initially detected in the first CT scan at the hospital caused or contributed to the GCS score of 9 on August 9th.
[11] The Arbitrator found that the GCS score of 9 on August 9, 2009 satisfied the legal test. He reasoned as follows: (1) he heard no reliable evidence of how much conscious lowering medication was in Mr. Hodges’ body at the time the GCS scores were taken or precisely how that medicine would affect his score; (2) both doctors testified that studies have shown that different medical practitioners can score the same patient within a range of 2; (3) the GCS test is not a scientifically precise measurement of consciousness levels; and (4) he was not required to question the validity of the score based upon normal or usual complicating factors (such as other injuries or treatment) that would effect a GCS score of a patient like Mr. Hodges.
[12] Security National appealed the Arbitrator’s decision. Such appeals are restricted to questions of law under s. 283 of the Insurance Act, R.S.O. 1990, c. I.8. By reasons dated February 22, 2013 the Director’s Delegate confirmed the Arbitrator’s decision. He held that whether using a “but for” test or on a “material contribution” basis the Arbitrator had sufficient evidence upon which to find that Mr. Hodges satisfied the legal test in s. 2(1.2)(e)(i) of the regulation. The Delegate found that Dr. Berry’s evidence questioning the suitability of the GCS score in measuring brain impairment as a prognostic tool was not germane to the statutory test under the SABS. The Delegate also concluded that the Arbitrator had sufficient evidence to support a finding that in the particular circumstances of this case, the GCS scores of 9 on August 9th were taken “within a reasonable period of time”. He rejected the argument that a “reasonable time” implies that such scores must be within a time that gives prognostic or predictive information. He agreed with the Arbitrator’s reasoning that so long as a person’s consciousness is fluctuating, making GCS monitoring appropriate, then such scores can at least be considered in the application of the SABS test.
Standard of Review
[13] Security National submits that the standard of review is correctness because the Insurance Act confers concurrent jurisdiction to FISCO and to the court for resolving SABS issues as a matter of first instance. We do not accept this submission. We adopt the conclusion and reasons of this court in State Farm Mutual Automobile Insurance Company v. Federico, Financial Services Commission of Ontario, 2014 ONSC 109 at para. 4 to 8. The standard of review is reasonableness.
Analysis and Conclusion
[14] The essence of Dr. Berry’s evidence that Security National relies on for this application is that the scores of 9 recorded at 2:00 a.m., 3:00 a.m. and 4:00 a.m. on August 9, 2009 are “probably not” a reflection of Mr. Hodges’ level of brain injury but rather a reflection of ten other factors influencing his post-surgical recovery. Dr. Berry highlighted the fact that the initial CT scan of August 6, 2009 reveals only a small hemorrhage and contusion “a mild but definite physical brain injury” that would only in and of itself have resulted in an expected GCS score of between 12 and 14, a range consistent with Mr. Hodges’ pre-intubation GCS scores. Dr. Berry pointed out that the only reliable evidence of the extent of any brain injury after that are the subsequent CT scans which show improvement of the initial brain injury. According to Dr. Berry, four or five days following the accident is not a reasonable period within which to accept a GCS score as indicative of a catastrophic brain injury because by that time the diagnostic scans make it clear that Mr. Hodges delayed recovery was not the result of worsening brain injury and must be therefore attributable to his other injuries and their treatment including surgery and medication.
[15] Dr. Becker agreed that the medications used to treat Mr. Hodges subsequent to extubation could have contributed to a lower GCS.
[16] The Director’s Delegate held that if Mr. Hodges’ impaired consciousness, as measured by GCS scores, would not have occurred “but for” the brain impairment then causation is established. Alternatively if brain impairment materially contributed to the GCS score causation is established. The Director’s Delegate specifically held that when determining a “reasonable time” in any particular case the SABS do not require consideration of whether the score offers any prognostic value or are predictive as to the degree or level of ongoing or future brain impairment.
[17] The underlying assumption of Security National’s position is that a brain injury itself must cause a GCS score of 9 or less. This is not the way the regulation reads. The regulation focuses on measuring brain impairment, not brain injury, and it uses a GCS score as the determinative measure.
[18] The regulation also requires that the brain impairment be “in respect of an accident”, so the starting point is to determine whether the person sustained a brain injury that is a reason for some brain impairment. In this case, if the MRI or CT scan of August 7th had shown no brain injury whatsoever (or a brain injury that was so minor as to not impair consciousness whatsoever) there would be no brain impairment “in respect of an accident”. However, in this case, even Dr. Berry agrees that the injury to Mr. Hodges’ brain was accident related and resulted in at least some brain impairment. There is no requirement that the brain injury by itself would have reduced a GCS score to 9 or less. It is sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment to make that person’s GCS score relevant for the purposes of the definition in the SABS.
[19] We agree with the Director’s Delegate that an inquiry into the patient’s prognosis or the seriousness of the actual brain injury is irrelevant for the purposes of the SABS. The GCS score is a proxy for that determination and it is conclusive with respect to the definition of catastrophic impairment.
[20] Security National submits that the legislative intent is to ensure that GCS scores with no prognostic value should not be used to determine catastrophic impairment. We do not agree. That would turn a legal test into a medical test. Moreover, the purpose of this threshold test in the SABS is simply to allow a person to make a claim for enhanced benefits. It does not ensure that the person will qualify for additional benefits. The person will still need to show entitlement based upon his or her subsequent medical condition and the degree of impairment sustained. The legislative intent in providing GCS scores as a proxy measurement of injury is simply to weed out the weakest claims at an early stage. The legislature could not have intended that seriously injured individuals would fail to receive a catastrophic impairment designation simply because their GCS score was confounded by the severity of their other injuries or treatment.
[21] The Delegate correctly held that any notion of catastrophic impairment other than the specific meaning ascribed to that term by SABS must be discarded when considering whether a claimant meets the statutory test. The Delegate correctly rejected reading in qualifying language such as “valid and reliable”, “ongoing”, “durable”, or “significant”.
[22] The question of what is a “reasonable period of time” is determined on a case-by-case basis. Even Dr. Berry agreed that as long as the patient is showing fluctuating consciousness his or her GCS scores should be recorded, as they were in this case. The GCS scores of August 9th were recorded eight or nine days before GCS scoring was terminated. The determination of that factual issue in this case was reasonable.
[23] In our view, neither the Arbitrator nor the Director’s Delegate misapprehended the evidence of Dr. Berry, applied an incorrect legal test or otherwise erred in law. The decision of the Tribunal is reasonable. The application for judicial review is dismissed. By agreement of counsel costs are fixed at $12,000 all-inclusive in favour of the successful party.
Then J.
Aston J.
Harvison Young J.
Date: July 14, 2014
CORRECTION NOTICE
Corrected decision: the text of the original endorsement was corrected on July 15, 2014, and the description of the correction is appended:
On the first page of the endorsement under the heading of “counsel” the name Mark Flisfederer has been corrected. It should read Marc Flisfeder.