Neutral Citation: 2003 ONFSCDRS 160

FSCO A02-000695

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HOWARD YOUNG

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

DECISION ON A PRELIMINARY ISSUE

Before:

Beth Allen

Heard:

August 25 and 26, 2003, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

Michael J. Gillen for Mr. Young

Dwaine Burns for Liberty Mutual Insurance Company

Issues:

The Applicant, Howard Young, was injured in a motor vehicle accident on February 15, 2001. He applied for and received statutory accident benefits from Liberty Mutual Insurance Company ("Liberty Mutual"), payable under the Schedule.¹ In March 2002, Liberty Mutual terminated medical, rehabilitation and housekeeping benefits and denied the Applicant's claim for attendant care benefits and a case manager as a result of the findings of a Cat/DAC (Catastrophic Impairment Designated Assessment Centre) assessment.

The Applicant disputes the findings of the Cat/DAC. The preliminary issue I am required to decide in this matter is whether the finding of the Cat/DAC of non-catastrophic impairment is correct.

Depending on the outcome on the preliminary issue, the main issues in dispute are the Applicant's entitlement to the increased medical and rehabilitation benefits, attendant care benefits and case manager services available under the Schedule to insured persons who meet the statutory requirements of catastrophic impairment.

The parties were unable to resolve their disputes through mediation, and Mr. Young applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue is:

Is the Applicant entitled to a catastrophically impaired designation pursuant to subsection 2(1)(e)(i) of the Schedule?

Result:

The Applicant is entitled to a catastrophically impaired designation pursuant to subsection 2(1)(e)(i) of the Schedule.

EVIDENCE AND ANALYSIS:

Background:

The Applicant, 34 years of age at the time, was involved in a motor vehicle accident at about 7:00 a.m. on February 15, 2001. The automobile he was driving collided with a pickup truck on a highway. There is no dispute that the Applicant suffered numerous serious injuries as a result of the accident, among them, head, neck, back, chest, leg, arm and knee injuries. The Applicant claims with respect to his head injury, that he meets the test under the Schedule for a brain impairment based on his Glasgow Coma Scale ("GCS") ratings following the accident and is accordingly entitled to the enhanced benefits available to claimants designated as catastrophically impaired.

I must decide whether the Applicant meets the requirements of catastrophic impairment as defined under subsection 2(1) of the Schedule.

On February 15, 2001, ambulance attendants attended to the Applicant from 7:15 a.m. to approximately 7:35 when he was transported by ambulance to the emergency department of Dufferin-Caledon Health Care Corporation ("Dufferin-Caledon") where he arrived at about 7:55 a.m. He was then flown by air ambulance to Sunnybrook and Women's College Health Sciences Centre ("Sunnybrook"), arriving at approximately10:00 a.m., where he remained until February 22, 2001.

The Law:

Subsection 2(1) of the Schedule sets out the definition for catastrophic impairment as follows:

"catastrophic impairment" means,

(a) paraplegia or quadriplegia,

(b) amputation or other impairment causing the total and permanent loss of use of both arms,

(c) amputation or other impairment causing the total and permanent loss of use of both an arm and a leg,

(d) total loss of vision in both eyes,

(e) brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond, M., Assessment of Outcome After Severe Brain Damage, Lancet i:480, 1975, according to a test administered more than six months after the accident by a person trained for that purpose,

(f) subject to subsections (2) and (3), any impairment or combination of impairments that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person, or

(g) subject to subsections (2) and (3), any impairment that, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder;

[emphasis added]

(2) Clauses (f) and (g) of the definition of "catastrophic impairment" in subsection (1) do not apply in respect of an insured person who sustains an impairment as a result of an accident unless,

(a) the insured person's health practitioner states in writing that the insured person's condition has stabilized and is not likely to improve with treatment; or

(b) three years have elapsed since the accident. O.CReg. 403/96, s.C2C(2).

[emphasis added]

The parties do not dispute there is a two-stage process of assessing an insured person's impairment. They disagree about the timing of the stage two review. The first stage involves a clinical paper review of the insured person's records and the second stage involves a direct clinical assessment of the insured person. If three years have passed since the accident or the insured person's condition is assessed as stabilised, then assessment can move to the second stage where the insured person undergoes a direct clinical assessment where it is determined whether they satisfy the requirements of subsections 2(1)(f) and (g).

As alluded to earlier, under the Schedule, an insured person is required to have a designation of catastrophically impaired to qualify for certain enhanced benefits under the Schedule. For instance, the maximum limit for medical and rehabilitation benefits increases from $100,000 for a non-catastrophically impaired person to $1,000,000 for a person designated as catastrophically impaired, and attendant care benefits increase from $1,000 to $3,000 monthly with the total maximum limit increasing from $72,000 to $100,000. Insured persons are only entitled to the services of a case manager if they are designated as catastrophically impaired.

EVIDENCE AND ARGUMENTS:

The Appropriateness of Applying the Tests Under Subsections 2(1)(f) and (g) of the Schedule:

The Applicant submits that it was inappropriate for MDAC (Multi Disciplinary Assessment Centre) to have assessed him pursuant to the criteria in subsections 2(1)(f) and (g) of the Schedule. In its first report dated March 28, 2002, MDAC concludes that a catastrophic impairment finding was not possible through a stage one assessment and that the determination process would have to enter a stage two direct clinical assessment. The reasons for MDAC's conclusion is addressed below. A subsequent MDAC report dated April 4, 2003 records its stage two findings and conclusions on its direct clinical assessment of the Applicant.

Dr. Harold Becker, a general practitioner, who was retained by the Applicant, prepared a report dated May 21, 2003. Dr. Becker testified as to his knowledge about the assessment of disability and catastrophic impairments in his capacity as a general practitioner with experience as a disability DAC assessor since 1994, as a member of the Minister's Advisory Committee on DACs and on the basis of his involvement with catastrophic impairment assessments through designated assessment centres. He testified that he has been the clinical coordinator of two of the seven Cat/DAC assessment centres, the North Toronto Assessment Centre since 1996 and Work Able Centres, for about two years. Dr. Becker testified that he was not a treating physician for the Applicant, nor had he ever met the Applicant.

Dr. Bruce Stewart, retained by Liberty Mutual to assess catastrophic impairment, conducted an insurer's examination resulting in a report dated June 21, 2002. He assessed the Applicant's brain impairment as moderately severe. Dr. Stewart testified that he practised as a neurologist in Canada from 1966. Before retiring three years ago, Dr. Stewart held positions as a chief of medicine and staff neurologist at Etobicoke General Hospital and consulting neurologist with West Park Hospital.

The Applicant argues, with the support of Dr. Becker's opinion in his May 21, 2003 report, that the Schedule requires MDAC to have restricted its evaluation of his impairment to assessing him in relation to the test under subsection 2(1)(e)(i). According to that argument, Liberty Mutual ought not to have considered whether the Applicant met the criteria set out in subsections 2(1)(f) and (g). The Applicant submits that according to the express language of subsections 2(2)(a) and (b), certain requirements must be met before a stage two assessment can be conducted. The Applicant argues that rating him as to whole person impairment under subsection 2(1)(f), or obtaining the assignment of a class of impairment under subsection 2(1)(g) should only be undertaken if his health practitioner certifies in writing that his condition is stabilised and is not likely to improve with treatment, or three years have elapsed since the accident.

The parties do not dispute that the Applicant's health care practitioner did not provide the required certificate nor that the MDAC assessment was done before three years had elapsed.

Liberty Mutual argues that because of intubation, the administration of medication, the seizures and the nature of the Applicant's injuries, the GCS scores were not valid or reliable. According to Liberty Mutual, a satisfactory stage one paper review of the Applicant's impairment was not possible because valid and reliable GCS scores could not be taken. In MDAC's view, this required that the Applicant be assessed according to the stage two criteria.

Liberty Mutual's position at the hearing appeared to be that it was appropriate for MDAC to conduct the stage-two assessment which was conducted in February and March 2003 by a neurosurgeon, a psychologist, a psychiatrist, an occupational therapist and an orthopaedic surgeon. However, in his June 21, 2002 report, Dr. Stewart stated that subsections 2(1)(f) and (g) must be applied three years after the accident. In any event, applying the criteria set out in subsections 2(1)(f) and (g) of the Schedule, MDAC concluded that the Applicant did not satisfy the requirements for a catastrophic designation.

I considered the parties' arguments on the appropriateness of the MDAC conducting the stage-two assessment, and I agree with the Applicant's position. I find that MDAC did not act in compliance with the express requirements of subsection 2(2)(a) and (b) of the Schedule. There is no evidence that the Applicant produced a health practitioner's certificate as required by paragraph (a), and the stage two Cat/DAC assessment was not conducted three years after the accident in accordance with paragraph (b), but rather, approximately two years and eight months post-accident. I find this assessment was done prematurely.

In arriving at my decision in this matter, I therefore did not consider the findings and conclusions MDAC arrived at in its April 4, 2003 report as they affect the Applicant's entitlement to a catastrophic impairment designation. For reasons I expand on below, I have restricted my decision to a consideration of whether the Applicant meets the requirements of subsection 2(1)(e)(i) of the Schedule.

The Test Under Subsection 2(1)(e)(i) of the Schedule:

The Applicant argues that the injury he sustained to his head as a result of the accident is a brain impairment that meets the requirements of a catastrophic impairment under subsection 2(1)(e)(i) of the Schedule. Liberty Mutual submits that the Applicant's head injury does not satisfy the test for catastrophic impairment. There is no issue that the Applicant's impairment does not meet the requirements of the conditions enumerated in subsection 2(1)(a) to (d), or that his brain impairment does not satisfy the requirements of subsection 2(1)(e)(ii).

According to subsection 2(1)(e)(i), an insured person:

• must have sustained a brain impairment

• that in respect of an accident

• results in a GCS score of 9 or less

• according to a test administered within a reasonable time after the accident

• by a person trained for that purpose.

There is no dispute that the Applicant sustained a brain impairment that, in respect of an accident, resulted in a GCS score of 9 or less. The evidence shows that the Applicant's GCS scores were less than 9 for a period of time after the accident. Liberty Mutual, however, disputes the reliability and validity of the GCS scores. The parties do not disagree that the GCS tests were conducted by (a) person(s) trained to do such a test. Ambulance attendants and emergency room nurses and physicians administered several tests. The parties disagree on what constitutes a reasonable time after the accident for an applicant to maintain a GCS score of 9 or less.

The legislation does not contain a temporal requirement in subsection 2(1)(e)(i) of the definition for an insured person to maintain a score of 9 or less. As will be discussed below, a number of factors including the nature of the injuries, medical procedures by ambulance and emergency staff, transitory changes in the patient's condition and the administration of drugs can affect GCS scores. The legislation is also silent on how or whether these factors should be factored into the GCS score.

Dr. Becker testified as to the content and purpose of the GCS. There is no dispute as to the basic features of the GCS. He explained that the GCS scale was developed in the 1970s as a tool to translate levels of unconsciousness for medical evaluation. The GCS scale was established to replace such previously used qualitative descriptors as "stuperous", "comatose" and "confused." The GCS attempts to quantify levels of consciousness and, for this purpose, is comprised of three parameters or factors to be measured, each of which is assigned a numerical value based on the patient's condition. Dr. Becker's opinion was that the GCS was developed more as a tool of communication among medical practitioners than to be employed in a judicial setting. In his view, the GCS score is meant to measure consciousness, not to be a diagnostic or prognostic tool. Dr. Becker testified that because the Schedule does not define "a reasonable length of time", this must be determined from all of the circumstances.

The GCS measures the three factors of eye opening, motor response and verbal response. The highest score that can be assigned to each of these factors is 5, so that the highest total score is 15. Lower scores for particular factors measure greater inability in that area. The lowest score a patient can receive on an individual factor is 1, making the lowest total score 3.

There are sub scales for each factor. Trained personnel ask questions of the patient and do tests in order to assess the response level for each factor. For instance, for eye opening, a person who opens their eyes on their own would get a sub score of 4; while a person who opens their eyes only in response to a loud voice would achieve a sub score of 3; one who does so in response to pain (like a pinch of their finger) would get a sub score of 2; and they would be assigned 1 if they do not open their eyes at all. For motor response, a person's score would be 5 if they are able to follow simple commands and they would be assigned 1 if there is no motor response, with scores in between if they, for instance, pull their hand away when it is squeezed. With the verbal response factor, a person would be assigned a 5 if they are conversational and are able to give a historical account; 1 if there is no response; and an in-between score if, for instance, their speech is confused or they make unintelligible sounds. A total of the scores for each factor represents the person's GCS score.

Dr. Becker and Dr. Stewart agreed that seizures, intubation and the administration of sedative and paralysing drugs can confound GCS readings. Under these circumstances, where there is a head injury, a determination would have to be made as to the extent, if at all, the seizures or medical interventions have affected the score.

When the ambulance attendants arrived at the scene, they assessed the Applicant to be unconscious. According to the ambulance call report, the Applicant's GCS score was evaluated at 7:18, 7:28, and 7:38 a.m. The parties dispute whether the Applicant was intubated at 7:16 a.m. I will address this issue later. The GCS was assessed as 3 at 7:18 a.m., representing a score of 1 for each of the three factors, with no eye opening, verbal or motor responses. The Applicant's score was 4 at 7:28 a.m. with a score of 1 for eye opening, 2 for verbal response, because he made incomprehensible sounds, and 1 for motor response. He was removed from his vehicle at 7:29 a.m. and was placed in the ambulance which left the scene at 7:35 a.m. His third GCS reading, which was taken at 7:38 a.m. while en route to Dufferin-Caledon, was recorded once again as 3.

The ambulance call report records that the Applicant suffered two seizures lasting about one minute each, but the report does not note a time when these occurred. However, a note by an ambulance attendant says "seizures X 2 lasting 1 min. enroute." Dr. Becker and Dr. Stewart as well as Dr. Robert Milkovich, the attending physician at the Dufferin-Caledon emergency who assessed and treated the Applicant, conclude from the circumstances, and I accept, that the seizures must have occurred en route to Dufferin-Caledon.

In a consultation report, Dr. Milkovich evaluated the Applicant's GCS score to be 3 upon arrival at the hospital at about 7:55 a.m. and queried whether this score was due to the head injury or was a post-seizure [post-ictal] result. His consultation report indicates that in addition to succinylcholine, a paralysing drug, Ativan, a sedative, and Dilantin, an anti-convulsive, were also administered at Dufferin-Caledon. Dr. Stewart testified that the paralysing drug would take from 90 minutes to three hours to wear off. The parties dispute whether Dr. Milkovich's report indicates that the Applicant was intubated at the accident scene.

After arriving at Sunnybrook at about 10:00 a.m., the emergency staff recorded the Applicant's GCS score at 10:08 a.m. to be 3. The records for 12:00 p.m. indicate that the Applicant had "raccoon eyes" that were "swollen shut." Some records note a GCS score of 3 at this time. There are some discrepancies in the recording of GCS scores by various units at Sunnybrook and ambiguities as to the times certain scores were taken. I will address this matter later. Sunnybrook records cover developments in the Applicant's medical status until he was discharged on February 22, 2001.

After the accident, the Applicant received various types of treatment and services, including occupational and speech therapy, the services of a case manager, housekeeper and personal trainer, and treatment by an osteopath.

Dr. J.H. Somerville, a neurologist who assessed the Applicant for catastrophic impairment, concluded, in her report dated December 13, 2002, that the Applicant met the test. In accordance with this assessment, Dr. Somerville signed the Applicant's Application for Determination of Catastrophic Impairment which the Applicant submitted to the Insurer on May 30, 2002 pursuant to subsection 40(1) of the Schedule. Pursuant to subsection 40(2)(c) of the Schedule, Liberty Mutual required the Applicant to be assessed for catastrophic impairment by a designated assessment centre. In February and March 2002, the Applicant attended the Cat/DAC assessment at MDAC where he underwent neurosurgical, in-home occupational, psychiatric, neuropsychological and orthopaedic evaluations. In its reports dated March 28, 2002 and April 4, 2003, the MDAC assessors expressed a consensus opinion that the Applicant did not meet the criteria set out in the definition for catastrophic impairment under the Schedule.

Based on the findings of the Cat/DAC, Liberty Mutual terminated the Applicant's attendant care, medical, rehabilitation and housekeeping benefits and the services of the case manager.

The Parties' Arguments:

The Applicant's Arguments:

The Applicant argues that he meets the requirements of catastrophically impaired under subsection 2(1)(e)(i) on the basis that he maintained a GCS score of 9 or less for a reasonable period of time after the accident, a reasonable period of time to be determined, according to the Applicant, in the context of the circumstances of each case. He disputes Liberty Mutual's position that a reasonable period of time is six hours after the accident. The Applicant poses a number of points in time after the accident (when the Applicant had a GCS of less than 9) which can be considered a reasonable period of time for the purposes of the Applicant establishing entitlement to a catastrophically impaired designation.

Dr. Becker states in his May 21, 2003 report, and confirmed in testimony, that the GCS scores noted by the ambulance attendants appeared to be accurate and in accord with related entries in the ambulance call report of the Applicant's condition at various points in time. Dr. Becker pointed out that the notations of "unconscious" state, "unable to maintain own airways", "patient makes incomprehensible sounds", as well as the fact that he sustained serious facial and head injuries - a basal skull fracture, epidural bleeding and frontal lobe contusions - together support a GCS score of 3 to 4.

Dr. Becker also testified that the sub scores measured in a patient at a particular point in time are generally consistent. For instance, according to Dr. Becker, one does not expect to find a patient with a very high GCS motor score at the same time as registering very low eye opening and verbal scores. That is, if a patient does not open his eyes or talk, he is not likely to have a total GCS of 8. Dr. Stewart confirmed this evidence in his testimony.

Dr. Becker testified that it is expected, when a person experiences trauma leading to serious injuries, he would undergo emergency procedures like intubation and the administration of various types of medications and that, with a head trauma, there might be injury to the eyes and mouth - all of which could affect measuring GCS scores. The Applicant argues that the legislature would have taken this into account when setting out the requirements for catastrophic injury.

It is the Applicant's position that the two GCS ratings taken at 7:18 a.m. and 7:28 a.m. should be taken into account when assessing catastrophic impairment. The Applicant submits that from 7:00 a.m. to 7:28 a.m, for about 28 minutes, he had GCS scores of 9 or less that were not confounded by other extraneous factors.

The Applicant also asserts that his post-seizure GCS score of 3 taken by Dr. Milkovich before he was intubated and administered paralysing drugs at 8:00 a.m., should also be considered in assessing catastrophic impairment. The Applicant submits that Dr. Milkovich's consultation report merely states that it is unclear whether the GCS score of 3 was post-seizure or the result of his injuries and gives no opinion as to whether the GCS score was the result of the seizures.

The Applicant further argues that in spite of such confounding factors as seizures, intubation, paralysing drugs, facial fractures and swollen shut eyes, GCS scores of less than 9 can be determined for the period following the introduction of the confounding factors, by extrapolating from his earlier scores. This would take into consideration the serious nature of the Applicant's injuries and the background and context provided by the ambulance and hospital records. The Applicant argues that in doing this, one should take into account that the three sub scores taken at a particular point in time should be consistent with each other.

The Applicant argues, contrary to Liberty Mutual's position, that his initial GCS scores taken at 7:18 a.m. and 7:28 a.m. were not confounded by an intubation procedure. He submits that he was not intubated before he arrived at Dufferin-Caledon. In support of his position, the Applicant refers to an entry in the ambulance call report, next to the time 7:16 a.m. in the column entitled "Medicine or Procedure" where it notes "02". The Applicant argues, based on Dr. Becker's opinion, that this means that oxygen was not administered at 7:16 a.m. In further support of this position, the Applicant also points to the words "A/W (airway) maintained (not well, pt req. intubation)", arguing that "pt req. intubation" means "patient requires intubation, suggesting that intubation had not yet been done.

As further support for his position that he had not been intubated at 7:16 a.m., the Applicant points out that there are no further references from 7:16 a.m. to 7:45 a.m. in the ambulance call report to the Applicant having been intubated by the ambulance attendants.

The Applicant also points out that Dr. Stewart is the only physician who interpreted the ambulance call report as indicating that he had been intubated at the scene by ambulance attendants. According to the Applicant, neither Dr. Sommerville who prepared a report dated December 13, 2002 on behalf of the Applicant nor the Cat/DAC assessors who reviewed the ambulance call records in preparing their respective reports nor the medical staff at Sunnybrook noted intubation by the ambulance staff at 7:16 a.m.

The Applicant therefore submits that the GCS scores of 3 and 4, taken at 7:18 a.m and 7:28 a.m. respectively, should be considered evidence of his catastrophic impairment.

The Applicant also submits that the post-seizure period from 7:38 to 8:00 a.m. should also be included as a period when he had a GCS score below 9. He submits that seizures themselves may cause a brain impairment within the meaning of subsection 2(1)(e)(i) of the Schedule. To support this position, the Applicant relies on evidence given by Dr. Stewart on cross-examination. The Applicant asked Dr. Stewart whether with a patient, who has had no history of previous head injury, disease, trauma or seizures, sustains a brain impairment in a car accident followed close in time by a seizure, it is reasonable to assume the seizure was a result of the accident. Dr. Stewart answered in the affirmative. The Applicant further asked Dr. Stewart whether there is a loss of brain function during the seizure and thereafter. Dr. Stewart also answered in the affirmative, stating that this is an acute transitory state.

From this I take the Applicant's position to be that the brain impairment strictly referable to the seizures (leaving aside for the sake of this argument, consideration of the brain impairment caused directly by the accident) should be considered as a continuation of the Applicant's pre-seizure brain impairment and, hence, the post-seizure GCS score of 3 should be considered in assessing catastrophic impairment

The Applicant also poses an additional argument on the effects of the seizures. He argues that the GCS scores that Liberty Mutual argues have been confounded by the seizures, can actually be explained by the effects of head trauma caused by the accident. In making this argument, the Applicant relies on Dr. Stewart's oral evidence that the impact of the post-seizure state on the Applicant's impairment would have had minimal effect, lasting a few minutes to one or two hours. According to this argument, the Applicant's post-seizure GCS score of 3 as assessed by Dr. Milkovich at Dufferin-Caledon emergency, would not have been greatly affected by the seizures.

The Applicant also argues that for the period during and after the seizures (from about 7:38 a.m. while en route to Dufferin-Caledon by ambulance, until about 8:00 a.m. when intubation, paralysing and sedative medications were administered), one should be able to extrapolate or infer from the previous scores, the nature of his injuries and the surrounding clinical record, that he would have had a GCS score of less that 9 even without the seizures. Put simply, one should be able to infer that aside from the effect of the seizures, the Applicant's GCS scores would have remained at less than 9. To support this proposition, the Applicant points out that the last GCS score taken before the seizures was 4 and the post-seizure GCS score was 3.

Similarly, according to the Applicant, one should be able to extrapolate from surrounding clinical evidence that, given the severity of the Applicant's head injury, his verbal score would have remained low even without intubation. The Applicant submits that the GCS verbal scores were low before intubation at Dufferin-Caledon and remained low after intubation. The Applicant pointed to the Sunnybrook emergency nurses' notes at 10:08 a.m and the nurses' notes at 12:00 p.m. to show that at both times the same GCS score is noted as: eye opening = 1; verbal = T (intubated) and motor = 3, for a total score of 4 T. The records indicate no verbal response at either 10:08 a.m. or 12:00 p.m., and note motor flexion to a pain stimulus. Looking at the verbal score, the Applicant argues that intubation would not have prevented him from making verbal responses such as moans, if his level of consciousness would have permitted this. But according to the clinical records, the Applicant did not do this. The lack of verbalisation and the low GCS scores during intubation, in the Applicant's view, therefore, might not be attributable to intubation but rather to the Applicant's level of consciousness. The Applicant was extubated at 12:15 p.m. on February 16, 2001.

Looking at the Applicant's motor scores after the administration of paralysing drugs, the Applicant makes a similar argument to that which he advanced with respect to the effect of the seizures, intubation and his injuries on the GCS scores.

He submits the motor scores were low before drugs were administered at Dufferin-Caledon and remained low for hours afterwards. For instance, he pointed to the motor score of 3 at 10:08 a.m. and 12:00 p.m. and to Dr. Stewart's opinion that the effects of the paralysing drug should have worn off by 10:00 a.m. and 12:00 p.m. (Dr. Stewart testified that it would take from 90 minutes to three hours for the drug to wear off). The Applicant argued that up to five hours after the accident, he only had a motor response with pain stimulus. He submitted that the motor score of 3 is consistent with the low eye opening and verbal GCS scores at these times. The Applicant submits therefore that it can be inferred from this that his GCS score was less than 9 at 10:00 a.m. and 12:00 p.m.

The Applicant also challenges Liberty Mutual's position that the his low GCS eye opening and verbal scores are attributable, respectively to his eyes being "swollen shut" and to his multiple facial fractures or "smash mouth" condition. Again, it is the Applicant's position, that the nature of his head injuries, his eye opening and verbal scores would be reasonably attributable to his level of consciousness rather than the mechanical problems caused by his face and eye injuries.

The Applicant counters Dr. Stewart's evidence that compares the loss of consciousness experienced by the Applicant to the brief loss of consciousness of a person who faints or an athlete who is knocked in the head on a soccer field. Dr. Stewart testified that low GCS scores in the first or second hour after trauma do not necessarily represent catastrophic impairment but rather a transient alteration in awareness in respect to brain function where there is a quick return to function. The Applicant argued, based on Dr. Becker's oral evidence, that his circumstances are clearly distinguishable from the experience of someone who has simply fainted or been knocked out and has a low GCS score. The Applicant submits that his loss of consciousness as a result of serious head injuries and hence his GCS scores have to be seen within the context of the basil skull fracture, the bilateral frontal lobe hemorrhagic contusions and the multiple facial fractures he suffered as a result of a car accident.

The Applicant argues that the purpose of subsection 2(1)(e)(i) of the Schedule is to require an assessment of an insured person to determine at an early stage whether the insured person has sustained a brain impairment. Based on Dr. Becker's evidence, he submits that the GCS scores are intended as an immediate measure of a person's condition and not as a tool to diagnose or prognosticate on a patient's future condition. The Applicant submitted that it may be that based on the GCS scores, the person may need a great deal of early post-accident care which might taper off over time; or the person may make an early recovery but the rehabilitation phase may require benefits beyond those available to non-catastrophic persons.

The Applicant argues that future assessments of an insured person's needs are accommodated by the statutory accident benefits scheme. Insurers can periodically assess the insured person's future needs through conducting reasonably necessary insurer's medical examinations. The DAC system is also in place to provide opportunities for future assessments of need.

The Applicant submits that the legislature did not specify what constitutes a reasonable time after the accident. The period of time during which a person must maintain a GCS score of 9 or less must be determined in the particular circumstances of each case. Relying on Dr. Becker's evidence, the Applicant submitted that a reasonable length of time could be as short as 20 minutes, as held in the Fletcher² private arbitration decision. There is no requirement, he argues, that the time period be six hours as asserted by Liberty Mutual.

The Applicant concludes that he maintained a GCS score of 9 or less for 28 minutes after the accident, from about 7:00 a.m to 7:28 a.m., before any confounding factors entered into the clinical picture. The Applicant's position is that based on his GCS scores during this period, he is entitled to a catastrophically impaired designation.

The Applicant submits alternatively, that based on the serious nature of his head injuries and extrapolating from the data in the ambulance call report and the background clinical notes and records from Dufferin-Caledon and Sunnybrook, it can be concluded that he had a GCS score of 9 or less for about five hours after the accident or from the time the first score was taken at 7:18 a.m. on February 15, 2001 until 12:00 p.m. that day.

Liberty Mutual's Arguments:

Liberty Mutual argues that the Applicant does not satisfy the requirements of catastrophic impairment because he did not have a GCS score of 9 or less for a reasonable time after the accident. Liberty Mutual relies on Dr. Stewart's and MDAC's opinions that six hours after the accident is a reasonable time. Dr. Stewart testified that it is his policy based on experience to consider six hours to be a reasonable time after the accident. Liberty Mutual puts forward the six-hour time period based on Dr. Stewart's opinion that low GCS scores in the first hour or two after the accident may not reflect catastrophic impairment but rather a transient alteration in the person's awareness, from which most people quickly recover. According to Liberty Mutual, a person must have a GCS score of 9 or less for a prolonged period in order to establish whether a catastrophic impairment exists.

Liberty Mutual further argues that each of the Applicant's GCS scores taken by the ambulance attendants and at the hospitals were rendered invalid and unreliable by various confounding factors. Liberty Mutual relies on the opinions of Dr. Stewart and MDAC. Dr. Stewart testified that, although the Schedule does not expressly require that GCS scores be valid and reliable, it is reasonable to assume that the legislation intends this.

Liberty Mutual submits that all three sub scores must be valid for the total GCS score to be valid. Dr. Stewart's and MDAC's reports cite the nature of the Applicant's injuries, namely, facial fractures or the smash mouth injury with the resultant bleeding, swelling, spasm and pain, as factors that could have confounded the efforts to arrive at valid and reliable scores. Dr. Stewart testified that at the scene of the accident, the ambulance attendants would have had difficulty getting eye opening and verbal readings because of the swelling around his eyes and the difficulty aspirating his airway. Dr. Stewart and MDAC also point to intubation, the seizures, and the administration of paralysing drugs as factors that affected the reliability and validity of the GCS scores.

Regarding the effects of intubation on the Applicant's GCS scores, Dr. Stewart testified, contrary to the Applicant's view, that the ambulance call report prepared at the scene of the accident, together with comments in Dr. Milkovich's emergency consultation report, can be interpreted as indicating that the Applicant was intubated at 7:16 a.m., before he arrived at emergency at Dufferin-Caledon at about 7:55 a.m. Dr. Stewart did not discuss this view in his report. Dr. Stewart points to the 7:16 a.m. entry in the ambulance call report which states: A/W (airway) maintained (not well), pt req. intubation." Dr. Stewart interprets "pt req. intubation" as meaning that intubation had been effected by ambulance attendants at 7:16 a.m.

According to Dr. Stewart, that 7:16 a.m. entry, together with the following statement in Dr. Milkovich's consultation report - "He was intubated when I first assessed him easily with an 8.0 endotracheal tube, first attempt, Grade II larynx ... He was intubated with in-line neck stabilization by the paramedic" - indicate that the Applicant was intubated by a paramedic at the accident scene.

Regarding the effects of the paralysing drug, Dr. Stewart testified that to quell a patient's combativeness during and after an intubation process, a paralysing drug and sedative are generally administered. In Dr. Stewart's opinion, the medication administered at Dufferin-Caledon would have had a further confounding effect on the Applicant's motor score.

Liberty Mutual points to the post-seizure GCS scores of 3 at both 7:38 a.m. and at 7:55 a.m. when he arrived at Dufferin-Caledon and argues that the Applicant's eye opening, verbal scores and motor scores would have been affected by the seizures. The March 28, 2002 MDAC report notes that the Applicant's medical status during and after the seizures has to be regarded as distinct from any effects of brain damage or impairment. MDAC's report states:

Both seizuring and the related post-ictal state result from a transient and reversible electrochemical disturbance of brain physiology, which do not necessarily or typically reflect the altered anatomy and related impairment associated with brain damage.

Dr. Stewart confirmed this view in testimony. He explained that the seizures are to be considered as entirely separate from the head injury and that such seizures would likely produce a low GCS score on all three readings, confounding the scores during and after the seizures from 10 minutes to two hours. However, as noted earlier, on cross-examination, Dr. Stewart testified that the effects of the seizure activity on GCS scores during and after the seizures would be minimal.

As noted above, the Applicant arrived at Sunnybrook at about 10:00 a.m. on February 15, 2001. Dr. Stewart looked at the GCS scores - eye opening = 1, verbal = T and motor = 3 - taken at 10:00 a.m. by the trauma team at Sunnybrook. He testified that the eye opening score of 1 is not reliable because the Applicant's eyes were swollen. He added that the Applicant might have been able to open his eyes and achieve a higher eye opening rating were it not for the swelling. According to Dr. Stewart, the Applicant might have been able to verbalise, giving him a higher score, were it not for the intubation. A higher verbal score would be consistent with the higher motor score of 3 assessed at this time.

Dr. Stewart also points to the 12:00 p.m. Sunnybrook nurses' notes which indicate that the Applicant "crosses own legs & feet." Dr. Stewart states in reference to this, that with the effects of the paralysing drugs wearing off, the Applicant's motor skills improved. The reference in this note to "eyes swollen shut", according to Dr. Stewart, presents a further factor to confound the Applicant's eye opening score.

Dr. Stewart also states in his report that the 12:00 p.m. records show that the Applicant had a GCS score of 7 T at 12:00 p.m. (eye opening = 1, verbal = T, and motor = 6). On cross-examination, however, Dr. Stewart conceded that this was an error and that in fact the GCS score of 7 was recorded for 1:00 p.m. on February 15th.

Dr. Stewart refers to the comment in the 12:00 p.m. nurses' notes, "obeys commands", as an indicator of improved alertness and motor skills at that time. Dr. Stewart draws from these circumstances that, were the Applicant's eyes not swollen shut at this time and, were he not intubated, his eye opening and verbal scores would have been higher, which would have pushed his total GCS scores to above 9 at this time. According to Dr. Stewart, higher eye opening and verbal scores would be consistent with the higher motor score.

Dr. Stewart sought to fortify his evidence by looking forward at the Applicant's improvement the day after the accident on February 16, 2001. The Applicant's eyes remained swollen shut and the tube was removed at 12:15 p.m. on that day. Dr. Stewart pointed to the record after extubation which reveals that the Applicant had good verbal response after the tube was removed and had a GCS reading of 14 one hour later at 1:00 p.m. Dr. Stewart explained this score by the fact that two complicating factors were removed from the medical picture - the paralysing drug and the tube. He testified that the Applicant might have a normal eye-opening response were it not for the swelling in his eyes. The GCS score dropped back to 10 when the Applicant lost the eye movement he had gained.

In summary, based largely on the evidence of Dr. Stewart and the MDAC assessors, it is Liberty Mutual's position that the Applicant did not have reliable and valid GCS scores of 9 or less for a reasonable time after the accident, which time, according to Liberty Mutual, is six hours. Liberty Mutual argues that the Applicant is not entitled to a catastrophically impaired designation under subsection 2(1)(e)(i) of the Schedule and, accordingly, does not have available to him the enhanced accident benefits that go with this designation.

Reasons For Decision:

The assessment of catastrophic impairment pursuant to subsection 2(1)(e)(i) of the Schedule poses serious challenges from a number of perspectives. Among these challenges is the fact that ambulance attendants, emergency staff and specialists must step in early on after the accident to treat the patient and create a clinical record reflecting the developments in the person's medical condition. The clinical record in turn has to be reviewed in retrospect sometimes months and years after the accident by medical assessors applying the definition for catastrophic impairment to evaluate the patient.

The definition for catastrophic impairment also raises some interpretation issues. The fact that the definition for catastrophic impairment requires the use of GCS scores to assess brain impairment, but is not explicit as to how long a person must maintain a GCS score of 9 or less, poses challenges. The score must be maintained for a reasonable time after the accident. I agree with Dr. Becker's evidence that a reasonable time, when assessing brain impairment, must be determined in the context of the particular circumstances of each case.

Dr. Stewart testified that he has a policy of regarding six hours as a reasonable time after the accident. In my view, Dr. Stewart did not adequately support his opinion, that is, why six hours is his policy as opposed to, for instance, four hours. He testified that low GCS scores within the first one or two hours after the accident are not indicative of catastrophic impairment, but this does not answer the question of why six hours is a reasonable time.

I find that a look at subsections 2(1) and 2(2) of the Schedule together tends to bear out Dr. Becker's view. Time limits are set for some provisions. Subsection 2(1)(e)(ii) contains an express time limit, namely, that patients in a vegetative or with severe disabilities must have GCS scores of 2 and 3 respectively "for more than six months" after the accident. Section 2 contains a further time requirement. Three years under subsection 2(2)(b) are required to have passed before assessments under 2(1)(f) or (g) can be conducted.

I find if the drafters of the Schedule intended that a specific time limit be included in subsection 2(1)(e)(i), then a time limit would have been expressly prescribed as it was in the other provisions.³ I find that by leaving the time requirement open, the drafters have taken into account the varied medical pictures which might exist with persons who have sustained injuries less severe than those contemplated by subsection 2(1)(e)(ii).

Liberty Mutual urges that I interpret subsection 2(1)(e)(i) to include the words "valid and reliable" as modifiers of GCS score. My view is that this would not be appropriate. I look for authority for this view to Driedger which states: "In reading a statute words should not be added or deleted and the reader should not try to fill in any gaps he thinks he sees. Driedger goes on to quote an early Supreme Court of Canada case⁴ which held: "I cannot admit the right of the courts where the language of a statute is plain and unambiguous to practically amend such statute either by eliminating words or inserting limiting words."⁵

I find the words of subsection 2(1)(e)(i) are clear and unambiguous and there is no need to add the words suggested by Liberty Mutual.

Perhaps, understandably, Liberty Mutual is attempting to address some of the inherent frailties of the GCS score through its desire to import the adjectives valid and reliable. I accept Dr. Becker's opinion that GCS scores are not intended to be used to diagnose a condition or prognosticate on an injured person's future medical status, but rather is intended as a tool of communication between medical practitioners about a person's state of consciousness after trauma. Although, as Dr. Becker stated, the use of GCS scores is an attempt to quantify levels of consciousness to improve on the previous use of descriptors, there is still a subjective element to arriving at a GCS score. Different medical practitioners may interpret the objective indicators differently. Adding to this, as both parties acknowledge, is the fact that certain factors such as the injuries themselves and certain emergency medical procedures can confound the scores. It stands to reason that the more severe a head injury, the more likely that aspects of the injury might affect the scores, and the more likely that emergency procedures would be administered that might also complicate the medical picture.

I find one must be able to assume the legislature was aware of these features of the GCS score when it chose it as a means to assess catastrophic brain impairment. Surely the legislature would not have intended to provide the GCS score as a measure of catastrophic impairment under circumstances where the very characteristics of this tool would rule it out as an appropriate measure. It cannot be intended by the legislature that the most seriously injured might not have the enhanced benefits available to them soon after the accident because their GCS scores were confounded by the severity of their injury. In the end, however, the GCS score is a tool medical assessors and adjudicators must work with in assessing catastrophic brain impairment.

In the circumstances of the case before me, I find that the Applicant meets the requirements of catastrophic impairment in that he maintained a GCS score of 9 or less for a reasonable time after the accident. I find that the Applicant has proved on a balance of probabilities that on February 15, 2001 he maintained a score of less than 9 for about one hour - from 7:00 a.m, the time of the accident, until about 8:00 a.m., when he was intubated and medicated with paralysing drugs at Dufferin-Caledon.

I find in the circumstances of the Applicant's case that one hour is a reasonable time after the accident to have maintained a GCS score of 9 or less. I do not accept that six hours would have had to pass in the Applicant's case before a determination could be made as to whether he would recover quickly, given the severity of his head and facial injuries. I therefore reject what appears to be a comparison by Dr. Stewart of the Applicant's circumstances with that of a soccer player who is hit on the head, knocked out, and who recovers quickly, gets up and walks away.

In arriving at my conclusion, I considered the factors Liberty Mutual asserts as confounding factors affecting the Applicant's GCS scores up to 8:00 a.m.

I accept Dr. Becker's opinion that it was the Applicant's level of consciousness due to the nature of his head injuries, rather than his swollen eyes and smash mouth, that resulted in the Applicant's low eye opening and verbal scores during this period. The Applicant also had low motor scores at this time. Dr. Becker and Dr. Stewart concur, and I accept, that the three sub scores are expected to be consistent with each other.

Regarding the 7:16 a.m. entry in the ambulance call report, I find the Applicant's interpretation of this notation to be more reasonable than that of Liberty Mutual. I find it reasonable to interpret the words, "A/W maintained (not well), pt req. intubation" to mean the patient requires intubation, which, I agree, reasonably suggests that intubation had not yet been done. The further notation "0”₂⁶", with a strike out line, tends to further support the view that oxygen was not given, leading to the reasonable conclusion that intubation was not administered at that time. I find further support for my finding in the following facts: that nowhere else in the ambulance call report is intubation at 7:16 a.m. noted; apart from Dr. Stewart's testimony, other medical practitioners who reviewed the ambulance call report did not note intubation at 7:16 a.m.; and Dr. Stewart himself did not address this in his report after reviewing the ambulance call report.

I find the comments in Dr. Milkovich's consultation report about intubation to be reasonably susceptible to being interpreted as meaning that he (Dr. Milkovich) intubated the Applicant when he first assessed him. The comment about a paramedic intubating the Applicant with in-line neck stabilisation is ambiguous as it does not refer to the place and time this was done. I cannot infer from this, as Dr. Stewart suggests I do, that intubation was administered at the accident scene.

I therefore conclude that the Applicant's GCS scores at 7:18, 7:28, 7:38 and 7:55 a.m. were not confounded by intubation.

It is not in dispute that the Applicant did not have a pre-existing seizure condition and that the seizures he experienced after the accident resulted from his accident-related head injury. The Applicant's GCS score was 3 at 7:18 a.m. and 4 at 7:28 a.m. (at the scene). After the seizures, the GCS scores were 3 at both 7:38 a.m. (en route) and 7:55 a.m. (after arrival at Dufferin-Caledon). I accept the Applicant's position, as conceded by Dr. Stewart, that the two seizures suffered by the Applicant while en route to Dufferin-Caledon would have had minimal impact on the Applicant's GCS scores and that his post-seizure scores basically reflect what they would have been without the seizures.

I also accept the Applicant's additional argument that a seizure itself is a brain impairment that should be considered as part of the Applicant's medical picture in assessing catastrophic brain impairment. Dr. Stewart testified that a seizure causes a loss of brain function and described it as an acute transitory alteration in awareness. Similarly, the MDAC report described the seizure and post-seizure states as resulting from "transient and reversible electrochemical disturbance of brain physiology..." I find for this reason that the seizures formed part of the continuum of the Applicant's brain impairment after the accident, although a temporary and reversible condition and, therefore, the post-seizure scores should not be discounted when assessing catastrophic impairment.

I am not prepared, based on the evidence before me, to consider the Applicant's GCS scores after 8:00 a.m. on February 15, 2001 in determining the Applicant's entitlement to a catastrophic impairment designation. I find, for the following reasons, that the Applicant did not prove on a balance of probabilities that he maintained GCS scores of 9 or less after 8:00 a.m.

I find that the Applicant's GCS scores following intubation and the administration of paralysing drugs at 8:00 a.m. at Dufferin-Caledon present with certain additional complexities. At the hearing, Dr. Becker expressed an opinion on extrapolating the Applicant's post-intubation and post-drug administration GCS scores, however he did not address this in his report. Dr. Becker did not expand on this in his testimony to my satisfaction, given the medical complexities I assume would exist in the interaction between levels of consciousness and the administration of paralysing drugs and the interaction among the Applicant's injuries, levels of consciousness, verbalisation and intubation. I find expert evidence from a neurologist and any other pertinent medical specialist might have been helpful. In spite of my finding, I do not find the Applicant's arguments about extrapolating the Applicant's GCS scores from background clinical records to be without merit.

Adding to the difficulty with the post-8:00 a.m. GCS scores is the fact that the clinical records from the various hospital units at Sunnybrook that treated the Applicant after he arrived there at 10:00 a.m. on February 15th, are at times incomplete as to certain critical data. For instance, some of the records of the Applicant's GCS scores from the neurosurgery and anesthesiology units contain no times, making it difficult to track the development in his scores. There are also some discrepancies between hospital units in the recording of GCS scores for the same point in time. For instance, the trauma team's records in places note different GCS scores for 10:00 a.m. from those recorded in the nurses' notes. I find that, in addition to the other complicating factors, this makes it more difficult to rely on some of the Sunnybrook GCS scores to assess the Applicant's brain impairment.

I accept the Applicant's view that a GCS score is not intended to project into the future the medical status of an applicant, but is rather a tool employed among medical practitioners to communicate the level of consciousness of a person who has sustained head trauma. It is employed under the Schedule as a measure of an injured person's states of consciousness for a reasonable time after the accident in order to assess the level of brain impairment.

I agree with the Applicant that the Schedule provides for the assessment of future developments in a catastrophically impaired person's medical condition. If an applicant's medical practitioner provides a medical opinion that the applicant's condition has stabilised or three years have passed since the accident, assessments of the status of his impairment can be conducted under subsections 2 (1)(f) and (g) of the Schedule. The Schedule also provides an avenue for insurers to assess an applicant's medical condition over the course of his claim through insurers' examinations when it is reasonable and necessary to do so. DAC assessments are also available to the insurer and the applicant to assess developments in the applicant's medical status.

I conclude for these reasons that the Applicant is entitled to a catastrophically impaired designation and therefore has available to him the enhanced benefits afforded insured persons with this designation.

EXPENSES:

The parties made no submissions on expenses for this hearing into a preliminary issue. If the parties do not agree on this matter, I remain seized to hear the expense issue.

November 14, 2003

Beth Allen Arbitrator

Date

Neutral Citation: 2003 ONFSCDRS 160

FSCO A02-000695

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

HOWARD YOUNG

Applicant

and

LIBERTY MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Applicant is entitled to a catastrophically impaired designation.

2. If the parties do not settle the expense issue, I remain seized to hear it.

November 14, 2003

Beth Allen Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98, 114/00 and 482/01.
2. 2Unifund Assurance Company and Fletcher, January 18, 2000, decided pursuant to the Arbitration Act, S.O. 1991, c.17, and the Insurance Act, R.S.O. 1990, c.I.8, as amended.
3. 3E.A. Driedger, Driedger on the Construction of Statutes, (Butterworths 2nd edition Toronto: 1983) at 94.
4. 4Grand Trunk Pacific Railway v. Dearborn [1919] 3 W.W.R. 63.
5. 5supra, at 94.
6. 6I take notice of the fact that 02 is the recognized chemical symbol for oxygen.