Financial Services Commission of Ontario

Commission des services financiers de l'Ontario

Neutral Citation: 2005 ONFSCDRS 86

Appeal P03‑00043

OFFICE OF THE DIRECTOR OF ARBITRATIONS

LIBERTY MUTUAL INSURANCE COMPANY (Now: Liberty Insurance Company of Canada) Appellant

and

HOWARD YOUNG Respondent

BEFORE:

David Evans

REPRESENTATIVES:

Dwain Burns and Eric Sigurdson for Liberty Mutual Michael J. Gillen for Mr. Young

HEARING DATES:

July 22 and 27, 2004

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

The appeal is denied, and the arbitration order, dated November 14, 2003, is confirmed.
The parties may contact me within 30 days of this decision if they are unable to agree on appeal expenses.

June 20, 2005

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

The insurer appeals the arbitrator’s finding that, pursuant to the definition in the SABS–1996,¹ Mr. Young suffered a “catastrophic impairment” in an accident on February 15, 2001.

II. BACKGROUND

The designation of catastrophic impairment has an important effect on accident benefit claims: “Claimants with injuries meeting this definition may have access to a higher level of benefits for medical and rehabilitation goods and services, attendant care, and case management.”² Entitlement to these benefits is a separate issue.

Catastrophic impairment means, as defined in subsection 2(1) of the SABS, a number of things. The meaning is set out in clauses 2(1)(a) through (g). It can mean a specific trauma, including paraplegia or quadriplegia [clause 2(1)(a)], the total and permanent loss of use of both arms or of both an arm and a leg [clauses (b) and (c)], or total loss of vision in both eyes [clause (d)]. It can mean a more general condition, such as a 55 per cent or more impairment of the whole person [clause (f)], or a marked or extreme impairment due to mental or behavioural disorder [clause (g)].³

Catastrophic impairment based on brain impairment is determined by clause (e). Clause (e) is subdivided into two subclauses, with subclause (e)(i) relating to an assessment based on the Glasgow Coma Scale⁴ (“GCS”) and subclause (e)(ii) relating to an assessment based on the Glasgow Outcome Scale⁵ (“GOS”). Both assessments must be made “by a person trained for that purpose,” but they are administered at different times:

“catastrophic impairment” means,

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

(i) 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 by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe disability) on the Glasgow Outcome Scale . . . according to a test administered more than six months after the accident by a person trained for that purpose. . . .⁶ [Emphasis added.]

As Keenan J. stated in Holland v. Pilot Insurance Co., [2004] O.J. No. 2737: “It is common ground that subsections 2(1) e(i) and 2(1) e(ii) are independent and that brain impairment is found when either test produces the specified result.”⁷

The arbitrator concluded that Mr. Young was catastrophically impaired based on Mr. Young’s GCS assessment [subclause (e)(i)].

Dr. Harold Becker, a specialist in family medicine with experience in catastrophic assessments, was retained by Mr. Young to conduct a paper review of the medical reports.⁸ He testified that the GCS replaced the use of words like stuporous, comatose, or confused with “three sets of parameters which are views to more or less translate levels of unconsciousness for the purpose of medical evaluation. . . . It’s more of a tool of communication rather than anything ever meant to be judicial.”⁹ Each of the three parameters – eye opening, motor response and verbal response – is assigned a score to arrive at a maximum total of 15.¹⁰ The lowest score on any factor is 1, so the lowest possible total score is 3.

The parties disputed whether the GCS scores obtained from Mr. Young shortly after the accident related to a brain impairment or to other factors such as intubation and seizures. They also disputed whether the tests were carried out a reasonable period of time after the accident. Liberty Mutual argued that only scores that are predictive of outcome should be considered, so the “reasonable period of time after the accident” had to be at least six hours. In the result, the arbitrator found that the GCS scores taken within the first hour after the accident were not confounded by other factors and were taken within a reasonable period.

The GCS scores that the arbitrator relied on were obtained by ambulance attendants and an emergency room physician. Around 7:00 a.m. on February 15, 2001, a pickup truck hit Mr. Young’s car and trapped him in it. Ambulance attendants arrived at the scene about 15 minutes later and discovered Mr. Young suffering severe respiratory distress. They suctioned his airway, as he was unable to maintain it, and they noted facial smash, bruising around the orbital bones of the eye (“raccoon eyes”) and a bleeding nose. The attendants took GCS scores during the process of extricating him and taking him to the hospital. The arbitrator found that, based on the records, Mr. Young suffered two seizures en route. Mr. Young arrived at the emergency department of Dufferin-Caledon Health Care Corporation¹¹ just before 8:00 a.m., where further GCS tests were administered. Just after 9:00 a.m. he was discharged to Sunnybrook and Women’s College Health Sciences Centre by air ambulance, where he remained until February 22, 2001.

Mr. Young’s initial GCS scores were low. The arbitrator based her decision on the four tests conducted in the first post-accident hour. The ambulance attendants administered three at 7:18, 7:28, and 7:38 a.m., and obtained scores of 3, 4, and 3, respectively. Dr. Robert Milkovich, the emergency physician at the DCHCC, administered the fourth at about 7:55 a.m. In his consultation note,¹² Dr. Milkovich wrote: “On presentation here his GCS was 3, it is unclear whether that was related to his head injury or to a postictal¹³ state.”

Mr. Young received a variety of treatments and assessments over the following years. Dr. J. H. Somerville, a neurologist at Sunnybrook, referred him for a CAT DAC (Catastrophic Impairment Designated Assessment Centre) assessment based on the GCS scores [subclause (e)(i)]. The Multi Disciplinary Assessment Centre (“MDAC”) carried out the CAT DAC assessment, and on March 28, 2002, the DAC team reported that it was not prepared to designate a catastrophic impairment under subclause (e)(i) because “it was not possible to be certain that the GCS score predominantly reflected head injury . . .” in the absence of “reliable evidence that GCS scores of 9 or less were the direct and exclusive consequence of a serious traumatic impairment of brain function.”¹⁴

Dr. Bruce Stewart, neurologist, was retained by Liberty Mutual and provided a report outlining his opinions dated June 21, 2002. He testified that “obviously Mr. Young suffered from a significant brain injury” and that he “described it as moderately severe” in his report.¹⁵

In a report dated December 13, 2002, Dr. Somerville concluded that Mr. Young had plateaued in his recovery and that his residual problems were permanent. She referred Mr. Young to a second CAT DAC for a determination of whole person impairment [clause 2(1)(f)] or marked or extreme impairment due to mental or behavioural disorder [clause (g)]. In its report of April 4, 2003, MDAC concluded that he did not meet those criteria.¹⁶

At the arbitration hearing, Liberty Mutual submitted that, although the GCS scores were all below 9, they resulted not from brain impairment but from medication, intubation, seizures and the nature of Mr. Young’s injuries (the facial smash, raccoon eyes, and bleeding). They were thus confounded and not “valid and reliable.” Liberty Mutual also submitted that any scores taken within the first six hours or so should be discounted as not having been administered “within a reasonable period of time after the accident.”

The arbitrator refused to include the words “valid and reliable” as modifiers of GCS score. She found that the scores taken within the first hour of the accident reflected Mr. Young’s level of consciousness due to his head injuries rather than due to his swollen eyes and smashed mouth. She found that Mr. Young’s GCS scores at 7:18, 7:28, 7:38 and 7:55 a.m. were not confounded by intubation because she found he was only intubated after arriving at the DCHCC. She found that his post-seizure scores reflected what they would have been without the seizures. She also accepted Mr. Young’s additional argument that a seizure itself is a brain impairment. She did not accept his later GCS scores because she was not convinced that they could be extrapolated post-intubation and post-drug administration and because the records were incomplete and discrepant.

The arbitrator found that there is no requirement to rely only on GCS scores taken six or more hours after the accident. She found that the reasonable time for assessing brain impairment must be determined in the context of the particular circumstances of each case. She found that a GCS score is not intended to predict the medical status of an applicant into the future. The arbitrator concluded Mr. Young met the definition of catastrophic impairment due to low GCS scores under subclause (e)(i).

III. ANALYSIS

A. Standard of Review

Liberty Mutual submits that several findings of fact related to the allegedly confounding factors are errors of law.¹⁷ Most significant were the arbitrator’s finding that Mr. Young was not intubated until after he arrived at the hospital and that the seizures did not significantly affect the GCS scores.

The standard in court cases is now that, absent statutory direction to the contrary, appellate courts must defer to all findings of fact made at trial unless the court is satisfied that the finding was the product of a “palpable and overriding” error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. Accordingly, in Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201, [2004] O.J. No. 1765 (QL), the Court of Appeal said:

After Housen, appellate courts will not review findings of fact, either primary or those drawn by inference, by asking whether on the totality of the record, those findings are reasonable. Cases from this court such as Keljanovic Estate v. Sanseverino (2000), 2000 CanLII 5711 (ON CA), 186 D.L.R. (4th) 481 at 488‑489 (Ont. C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 300 and Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (C.A.) must be taken as overruled to the extent that they contemplate appellate review of findings of fact based on an independent albeit limited appellate reassessment of the reasonableness of the findings of fact made at trial.¹⁸

Housen has also been considered in a number of FSCO decisions. In Lombardi and State Farm Mutual Automobile Insurance Company, (FSCO P01‑00022, February 26, 2003), the Director’s Delegate noted that Housen stands for the proposition that inferences can be attacked at two distinct levels, namely on the findings of fact on which the inference is based and on errors in the inference drawing process itself:

Applying these principles in the context of an appeal from the decision of an arbitrator, I conclude that inferences can be attacked if the appellant can demonstrate the arbitrator made an error of law when he made the findings of fact on which the inference was based, or if the arbitrator made an error of law in the inference drawing process itself.¹⁹

He also held that errors of law include findings of fact made in the complete absence of supporting evidence, made on the basis of conjecture, or made on the basis of a misapprehension of the evidence caused by a misdirection on a legal principle. The vital distinction is between a conclusion that there was “no evidence” to support a finding and a mere “insufficiency of evidence.”

It is against this standard that the arbitrator’s findings of fact must be measured. As set out below, I find no errors of law in her findings.

B. The DAC report

The issues about the GCS scores [clause (e)(i)] flow from the initial MDAC report of March 22, 2002. Accordingly, I will set it out in some detail.

To assess the GCS scores, Dr. Jack Mayer, neurosurgeon, and Dr. Arthur Ameis, physiatrist, conducted a file review.²⁰ They noted that Mr. Young’s initial arousal state fluctuated, as reflected in the Ambulance Call Report.²¹ The GCS assessments were noted, as well as intubation at the DCHCC because of airway obstruction. Acute injuries included facial fractures, and CT scanning demonstrated bilateral frontal lobe contusions. The assessors wrote that Mr. Young recovered his arousal level quickly and improved his cognitive functions such that he was discharged a week later. They then set out their criteria for the Stage I determination, defining the test as follows:

Catastrophic Impairment designation can be made if there is reliable evidence that GCS scores of 9 or less were the direct and exclusive consequence of a serious traumatic impairment of brain function. In this case, the Assessors were concerned that other factors may have accounted in significant measure for the low level of the GCS scores.²²

The assessors referred to the three GCS subscores: motor, eye-opening and verbal. They considered the combined GCS score valid only if all three subscores are “valid and reliable.” First, they considered that the facial trauma “could have considerably confounded efforts to develop valid and reliable subscores” for the verbal and/or eye-opening tests. Second, the seizures would have muted arousal in the postictal period, affecting all subscores. According to them, any effects of the seizures had to be considered as separate and apart from the brain impairment being tested:

Both seizuring and the related postictal 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: thus the effects of seizuring on GCS must be considered as distinct from any effects of brain damage and any consequent impairment.²³

Third, Mr. Young’s respiratory distress, remedied by intubation, would “likely” have contributed to his agitation, combativeness and lack of verbal response and thus to the GCS estimates. Finally, since he had a “rapid improvement leading to [a] relatively modest hospital stay,” the assessors felt that the low GCS scores were related to those factors. They concluded:

The Assessors shared the reservations of Dr. Milkovich, that it was not possible to be certain that the GCS score predominantly reflected head injury, in the face of facial fractures, obstructive respiratory distress, multiple grand mal seizures and postictal intervals. Head injury and related impairment must be the most important factor in order for the Assessors to complete the designation process.²⁴

They then proceeded to a direct clinical assessment to see if Mr. Young’s outcome more than six months after the accident met the GOS [subclause (e)(ii)] test. They concluded that it did not.

The confounding factors are discussed below, but I will make some preliminary comments first. To repeat the definition, “catastrophic impairment” means 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 by a person trained for that purpose. The CAT DAC Manual states: “When the GCS information on file is in question, the CAT DAC should clearly articulate its considerations in arriving at the conclusion.”²⁵ The Manual also states that “the CAT DAC should formulate an opinion on the claimant’s catastrophic status based on this file review in accordance with the SABS definition.”²⁶ However, the test the assessors applied added a number of words and phrases to the definition, such as reliable evidence of scores of 9 or less that were the direct and exclusive consequence of a serious traumatic impairment of brain function.

With respect to “reliable” evidence, the definition requires the scores to be taken by a person trained for that purpose, which should generally provide sufficient reliability for the scores. That is, prima facie the scores should be considered reliable. However, the assessors found that anything that could or may or would likely have affected the GCS scores meant they were unreliable and could discount them.

The assessors’ use of the terms “direct and exclusive” also seem to relate to reliability. In a serious accident such as this one there are a number of factors that could affect the scores, and the assessors set them out. However, by using the terms “direct and exclusive,” the assessors were taking a demanding approach. I find the following testimony by Dr. Becker apposite:

Taking the other side of the scale, if he’s not opening his eyes at all because he’s unconscious — I mean flaccidly unconscious — it doesn’t matter whether he’s got glass in his eyes or not. He’s just not responding. It doesn’t matter whether he has eye injuries or facial smash, he’s not responding. If there was a one or two point difference; if the Glasgow Coma score was something like 9, I’d very, very much entertain those discussions on mouth injuries. Did the mouth injuries result in the paramedic determining that the person’s speech seemed difficult to understand, and that might be a loss of two points. But in the case of a person who’s totally unconscious and not responding — and I’m talking about a GCS of 3 — I think that argument becomes moot. I don’t think it’s relevant. It’s easy to use the argument whenever there’s a confounding factor and say, I can’t measure it therefore I won’t measure it, therefore any measurement’s invalid. But I think that’s not reasonable.²⁷

The definition does not refer to a “serious traumatic impairment of brain function” but simply a “brain impairment” resulting in a GCS score of 9 or less. Presumably, such low scores already reflect a serious trauma,²⁸ so additional provisos serve as additional barriers beyond those set by the definition.

Aside from the definition, the assessors also downplayed Mr. Young’s injuries. Thus, although the assessors referred to Mr. Young’s “rapid improvement leading to [a] relatively modest hospital stay,” when he was discharged from Sunnybrook he did not even know the hospital’s name, according to Dr. Somerville. In her report of December 13, 2002, Dr. Somerville noted that Mr. Young continued to be followed at Sunnybrook in the Mild to Moderate Traumatic Brain Injury Clinic, that there were concerns the early seizures would recur, and that he continued to have prolonged post-concussion symptomatology. She concurred with Dr. Michael Schwartz²⁹ that Mr. Young had suffered a catastrophic injury and would be left with permanent impairments.

I will now turn to the confounding factors.

C. Intubation

The verbal GCS subscores are affected by intubation, since an intubated patient cannot talk. The act of intubation also has an effect on the patient, since normally there is a paralyzing agent used prior to insertion of the endotracheal tube. Dr. Stewart testified that “in order to intubate an individual who is combative, we use drugs to quieten the person. And in this case, it’s clearly written that he’s given succinylcholine.”³⁰

The arbitrator found Mr. Young was not intubated during the four tests she relied on.

Until the second day of the hearing, when Dr. Stewart testified, medical opinions noted that Mr. Young was intubated at the hospital. This includes Dr. Stewart, who initially testified: “Well, he arrived at Headwaters emergency at 7:50 a. m. and the doctor who saw him — it doesn’t actually say when he was intubated, but it was shortly after that.”³¹ His report of June 21, 2002 was to the same effect:

The ambulance reached the Headwaters Health Care Centre Emergency at 7:50 a.m. same day. His GCS remained 3. He had good respiratory effort and blood pressure was satisfactory. He was intubated in Emergency, given sedatives and paralyzed with succinylcholine. . . . [I]ntubation would have been done shortly after his arrival. In fact, the treating physician, Dr. Milkovich states “he was intubated when I first assessed him. . . .”³²

The assessors at MDAC reached the same conclusion. Page 5 of the March 28, 2002 report states: “At 07:55, after entry to Dufferin-Caledon Hospital, he was intubated because of airway obstruction.”³³ Dr. Jack Mayer, neurosurgeon at the second MDAC assessment,³⁴ noted that when Mr. Young was admitted to the DCHCC, he was given Succinylcholine and intubated, and Dr. Edwin P. Urowitz, orthopaedic surgeon, also wrote that Mr. Young was taken to the DCHCC and intubated. Dr. Becker’s opinion continued this thread when he wrote in his report of May 21, 2003, based on the Nursing Trauma Sheets: “The patient was intubated at 0800 hours with a #8 endotracheal tube following administration of succinylcholine at 0759 hours. . . .”³⁵

Liberty Mutual submits that Mr. Young was intubated early on by the attendants, or alternatively that some sort of mask was applied that has an intubation-like tube attached.

Regarding the early intubation, Liberty Mutual submits that, based on Dr. Stewart’s interpretation of an equivocal entry on the ambulance call report and a line in Dr. Milkovich’s report, Mr. Young was intubated at 07.16 a.m. by the ambulance attendants, before any GCS scores were administered. The call report entry referred to is the first 07:16 entry,³⁶ which under “Result” indicates that Mr. Young’s airway was maintained “(not well, pt req. intubation).”³⁷ Liberty Mutual submits that “req.” stands for “required,” meaning that intubation was carried out at that point. The line from Dr. Milkovich’s report is at the start of a sentence — “He was intubated with in-line neck stabilization by the paramedic . . . ” — that is cited in context below.

The arbitrator found that the call report entry meant the “patient requires intubation,” so that intubation was not carried out at that point. She also found that Dr. Milkovich’s report meant that he had done the intubation.

The arbitrator had evidence upon which to make her findings. For instance, the Trauma Flow Sheets on page 3³⁸ show that the first entry under “MEDICATION” is at 0759 for succinylcholine, and under the section for airway the entry for 0800 indicates intubation “#8 ET tube.” This corresponds with this line from Dr. Milkovich’s report: “He was intubated when I first assessed him easily with an 8.0 endotracheal tube.” The line that Liberty Mutual refers to also appears in this context 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. The endotracheal tube was secured at 24 cm on the lip and air entry was equal on both sides. I visualized the endotracheal tube passed through the cords as well his sats were maintained throughout. He was intubated with in-line neck stabilization by the paramedic and rapid sequence fashion with cricoid pressure was done with 100mg of Succinylcholine. [An] orogastric tube was placed shortly thereafter. . . . He was given the following medications while in our emergency department . . . as mentioned earlier, 100mg of Succinylcholine was given which had worn off by the time he was transferred by Air to Sunnybrook.³⁹

I agree with the arbitrator that one cannot infer from the above, as Dr. Stewart suggested, that intubation was administered at the accident scene.

Liberty Mutual submits that Dr. Becker acted as an advocate as opposed to an independent expert providing assistance to the arbitration process when he testified as follows:

You can see his [Dr. Milkovich’s] final evaluation was limited and there was a — “He was intubated when I first assessed him easily with an 8.0 endotracheal tube.” So that 8.0 reflects the endotracheal tube. And I think that sentence really means: “He was intubated after I first saw him.” Because his first comments were prior to intubation.⁴⁰

However, Dr. Stewart came to Dr. Becker’s viewpoint in discussing this passage:

A. “He was intubated when I first assessed him easily.” That’s first‑person.

Q. Yes.

A. And he looks down at the cords, first‑person. So that sounds like he did it.⁴¹

As to the mask applied to Mr. Young at the scene, the call report entry at 07:21 indicates “O2 NRB @ 15 LPM.”⁴² Dr. Becker wrote in his report: “Oxygen through a nasal rebreathing mask was started at 15 litres per minute at 0721 hours.”⁴³ Dr. Milkovich also referred to the rebreather during his initial exam.

With respect to the above, Dr. Stewart did not know what type of mask was applied to Mr. Young, and his evidence reflected only possibilities. In light of the evidence from the hospital records, and the vagueness of Dr. Stewart’s testimony, I find that the arbitrator had more than enough evidence to support her conclusion that Mr. Young was first intubated by Dr. Milkovich and not by the ambulance attendants.

D. Seizures

Dr. Becker and Dr. Stewart testified that seizures could confound GCS scores, so the arbitrator had to determine the extent to which, if at all, the seizures affected them.

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. en route.”⁴⁴ Dr. Becker, Dr. Stewart and Dr. Milkovich concluded that the seizures must have occurred en route to the DCHCC, which the arbitrator accepted.

With respect to those seizures, Dr. Milkovich wrote in his report that it was “unclear” whether Mr. Young’s GCS of 3 was related to his head injury or to a postictal state:

The story from the Medic was that he was unconscious the entire time, occasionally getting combative and he seized grand mal type seizure on different occasions each lasting approximately a minute en route to hospital. . . . On presentation here his GCS was 3, it is unclear whether that was related to his head injury or to a postictal state. . . . Again, it is unclear whether it was the head injury or the postictal phenomenon which caused his level of consciousness to be so obtunded.⁴⁵

As set out above, the MDAC assessors felt that the effects of seizuring on GCS must be considered as distinct from any effects of brain damage and any consequent impairment.

The arbitrator set out a great deal of the parties’ arguments and submissions, but she dealt with the seizure argument in two paragraphs, only one of which dealt with findings of fact based on the evidence. She wrote that it was not in dispute that Mr. Young did not have a pre-existing seizure condition and that the seizures he experienced after the accident resulted from his accident-related head injury. This appears to be correct, as Dr. Stewart answered “Yes” when asked if would it be reasonable to conclude that the seizure was caused as a result of the injuries sustained in the accident.⁴⁶

The arbitrator reviewed the GCS scores, noting the two taken at the scene — and hence before the seizures — were the score of 3 at 7:18 a.m. and that of 4 at 7:28 a.m. Both scores were 3 after the seizures, at 7:38 a.m. (en route) and 7:55 a.m. (after arrival at the DCHCC). She then wrote:

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.⁴⁷

On the last point — that the scores reflected what they would have been without the seizures — the arbitrator appears to have confused the evidence and Mr. Young’s submissions:

The Applicant also argues that for the period during and after the seizures . . . 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 3.⁴⁸

Counsel for Mr. Young had attempted to ask Dr. Stewart about this point, but the discussion got sidetracked with the issue of whether or not Dr. Milkovich’s report could be read to suggest that the ambulance attendant had intubated Mr. Young.⁴⁹ I can find nothing in the transcript to support the arbitrator’s finding that Dr. Stewart conceded this point. On the other hand, Mr. Young had just had low readings of 3 and 4, and a few minutes later he had another reading of 3, so it is hardly likely that in the interim his score would have jumped to 10 or more.

In passing, I note that Liberty Mutual submits Mr. Young’s scores would have been higher at the times he was combative, a point with which Dr. Becker agreed. However, in light of the overall low scores taken by trained personnel, I do not find that point persuasive.

The arbitrator’s finding that the seizures had a minimal impact on the post-seizure scores is supported by the evidence of Dr. Stewart:

Q. Would it be fair to suggest that at the time when Dr. Milkovich examined my client at 7:50 a. m., there had been some recovery from the process.

A. Yes. I don’t think that the postictal state bore a great deal of — at this point, affected the level of the Glasgow Coma Scale to a major degree.⁵⁰

On this point, Liberty Mutual submits that the arbitrator should have preferred Dr. Becker’s opinion. However, the arbitrator had the evidence before her and preferred that of Dr. Stewart. I can see no error in law in this.

The arbitrator then found that the seizures formed part of the continuum of Mr. Young’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 find this less convincing, considering that both experts testified that the temporary and reversible nature of the seizures meant any scores taken during or immediately after them should be discounted. For instance, Dr. Becker testified: “When a person is seizuring, and afterwards, the Glasgow Coma score is probably not valid because an individual, for example, with epilepsy who is normally just walking or sitting and has a seizure, there’s no head injury at that moment.”⁵¹ In my opinion, if the seizures were indeed transitory, that would suggest the low GCS scores did not result from a brain impairment but from the transitory phenomenon.

In any event, the arbitrator made the key factual finding that Dr. Milkovich’s reading was not confounded by the seizures. Dr. Milkovich himself made no determination, simply raising the issue. The arbitrator accepted the testimony of Dr. Stewart on this point, so there was evidence on which she based her finding. Therefore, I find no error of law.

E. Dr. Becker

On the points to be discussed, including the meaning to be given to the GCS scores, the arbitrator preferred the evidence of Dr. Becker over that of Dr. Stewart. I will discuss Dr. Becker’s testimony and expertise since Liberty Mutual submits repeatedly that the arbitrator erred in relying on his testimony instead of that of Dr. Stewart.

For instance, on whether the GCS scores are meant to prognosticate outcome, Liberty Mutual submits:

Contrary to the leading neurologists’ expert evidence, Dr. Becker, a family doctor, testified that the Respondent’s “outcome or what happened after his admission to the hospital, his recovery” is “totally irrelevant” to his opinion as to whether a person meets the test in clause (e)(i).⁵²

However, when read in context, Dr. Becker testified that he may indeed look at outcome measures to see if there was impairment resulting in the low scores:

Q. I just want to understand your opinion. So his outcome or what happened after his admission to the hospital, his recovery is totally irrelevant to your opinion.

A. It’s totally irrelevant except that we have to determine that there was great impairment. So I look for, as we said earlier, some kind of imaging abnormality like fractures, or bleeding, or I look for outcome measures, neurobehavioural outcome measures on neurosite testing.

Q. Okay.

A. And he had both.⁵³

In other words, if the person has a low GCS scores, and abnormalities or tests show an impairment, it is reasonable to conclude that the scores resulted from a brain impairment. Dr. Becker did not testify that a low GCS score by itself means that the person is catastrophically impaired.

Liberty Mutual submits:

However, Dr. Becker admitted in cross-examination that “if it’s measured” everybody who has a concussion has a GCS score of 3 at some point; and finally, after lengthy cross-examination, Dr. Becker admitted that (like Dr. Stewart) a reasonable period of time after the accident could vary case to case.⁵⁴

On the first point, Liberty Mutual again only quoted the first part of Dr. Becker’s answer:

Q. Okay. But doesn’t everybody who’s had a concussion have a GCS score of 3 at some point?

A. If it’s measured yes, absolutely. If it’s measured.

Q. By that analysis everybody who has —

A. And if — let me finish my — and if they have brain impairment.⁵⁵

Again, Dr. Becker was clarifying that the GCS score alone is not enough but must be tied to the brain impairment, as set out in the definition.

On the latter point, the arbitrator relied on Dr. Becker’s opinion as follows: “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.”⁵⁶

Liberty Mutual further submits “that the type of evidence submitted by Dr. Becker, a family doctor with no expertise in neurology, is the reason that the CAT DAC manual dictates that it is mandatory that a neurologist or neurosurgeon is part of the assessment.”⁵⁷ It is true that on p. 2-4, under the heading “2.2.2. Core Team,” the CAT DAC Manual sets out the following for the GCS [(e)(i)] assessment⁵⁸:

SABS Criteria

Role/Expertise

Disciplines

e) i) GCS

· Mandatory involvement of two (2) assessors in conducting necessary file review(s) pertaining to Glasgow Coma Scale.

Must be: · neurologist or · neurosurgeon and one (1) of: · physiatrist or · primary care physician or · neuropsychologist.

However, since one of the other choices is a primary care physician, Dr. Becker would be equally qualified to be part of the core team, even though he is not a neurologist. Thus, a primary care physician stands on an equal footing with a physiatrist such as Dr. Ameis. And as Dr. Becker put it: “The CAT DAC guidelines indicate that in order to provide an opinion that a GCS meets the definition, you must have a neurologist on the team. It doesn’t say that the neurologist is the one who determines it.”⁵⁹

Furthermore, Dr. Stewart also testified as to his belief on certain matters, such as how and why the “reasonable period” test was put into the SABS and why the early scores should not be relied upon:

I would stress though that they’re far too early in the assessment — as I pointed out with a simple concussion, how one can be — has a very low Glasgow Coma Scale for some time for hours after a concussion and recover from it. So they were not helpful and that’s why — I believe that’s why a reasonable period of time is written into the definition.⁶⁰

Dr. Stewart also opined on what the focus of the interpretation of the SABS should be:

The word “catastrophic,” although it’s never commented on by the legal profession, I believe should be focussed on. It applies a severe form of the range, but that’s my opinion and that’s not law nor medicine.⁶¹

Liberty Mutual submits that Dr. Becker acted as an advocate and seeks to rely on adverse comments on him in another decision, Elkaim and State Farm Mutual Automobile Insurance Company, (OIC A96-000329, November 17, 1997). However, in Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735, Spiegel J. noted that, in cross examination, plaintiffs’ counsel sought to impeach Dr. Ameis’ credibility by referring to a number of cases before that court and the Financial Services Commission of Ontario in which negative comments had been made by the judge or arbitrator concerning Dr. Ameis’ lack of objectivity and impartiality in his role as an expert. He held that the fact that Dr. Ameis has been the subject of negative judicial comment respecting his conduct as an expert witness in other cases was not the proper subject of cross examination in that case, unless a satisfactory evidentiary basis has been laid to make it relevant. I find it even less relevant to raise the negative commentary in submissions on appeal. Furthermore, if these comments were relevant, then surely it would also be necessary to consider positive comments about Dr. Becker. See, for instance, DeMartini and ING Insurance Company of Canada, (FSCO A03–000733, March 11, 2004), in which Arbitrator Killoran considered a report related to a catastrophic assessment by Dr. Becker dealing with the 55 per cent whole person impairment or WPI under clause 2(1)(f):

Dr. Becker was an excellent choice to conduct an assessment, considering his expertise in the field of catastrophic impairment. Dr. Becker was the chair of the working group that established the Catastrophic DAC Guidelines for Ontario. . . . It is of no consequence that Dr. Becker was not Ms. DeMartini’s family physician. Ms. DeMartini was assessed by Dr. Becker because he had the expertise required. Dr. Becker is a well-known expert in the field of catastrophic impairment assessments. Only a select number of physicians in Ontario are familiar with the AMA Guidelines to the degree necessary to make a determination of catastrophic impairment under the 55 per cent criterion.⁶²

Accordingly, I am not prepared to consider the negative comments about Dr. Becker in other decisions.

As to Dr. Becker’s inappropriate gloss and interpretation of the law of which Liberty Mutual complains, I have already noted that Dr. Becker was not acting as an advocate in interpreting Dr. Milkovich’s record, but simply helping in its interpretation. He did make comments about the meaning of the SABS and the interpretation to be given. However, nothing in the arbitrator’s decision reflects a reliance on any legal commentary by Dr. Becker. He had an opinion on the meaning to be given to the SABS — as did Dr. Stewart and, certainly, Dr. Ameis and the other MDAC assessors. Indeed, it is difficult to see how any expert in these circumstances can provide an opinion without interpreting the legislation to some extent.

Although Liberty Mutual submits that Dr. Becker’s testimony should be treated as inadmissible because the arbitrator permitted him to make general statements or opinions with respect to neurology (the arbitrator relying on the ground that arbitrators are somewhat more lenient in their application of the rules of evidence), in fact the arbitrator made no inappropriate use of his evidence. She even rejected it with respect to the GCS scores taken after 8:00 a.m. on the day of the accident:

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.⁶³

Liberty Mutual also attacks Dr. Becker’s expertise to be a properly qualified expert, relying on a sampling of statements from a variety of cases. For instance, it cites R. v. McIntosh, 1997 CanLII 3862 (ON CA), [1997] O.J. No. 3172 to the effect that simply because a person has lectured and written extensively on a subject that is of interest to him or her does not constitute him or her an expert for the purposes of testifying in a court of law on the subject of that specialty. However, that quotation is taken completely out of context and has no bearing on this case. In McIntosh, the issue was whether there was even a subject-matter of testimony that admitted of expert testimony, namely the alleged rules of human behaviour affecting memory patterns and the reliability of witness identification. That was not at issue here.

As another example, I will quote paragraph 131 of the insurer’s submissions, with respect to Walker v. York-Finch General Hospital, [1996] O.J. No. 5072:

A physician [Dr. Drees] employed as a CEO and President of a commercial plasma company, specializing in collection of human blood, attempted to give evidence on safety standards followed by voluntary blood donor clinics. His testimony was ruled inadmissible as he had no direct medical knowledge of the issues to which he purported to testify, his knowledge came from medical and science employees working for the clinic he managed. There was no evidence that he has made a study of the subject, or that he obtained any education about the subject. [Emphasis in the original.]

Again, this citation is not relevant here. I note in particular a line from paragraph 2 of the decision: “Dr. Drees is neither a medical doctor, nor a scientist.”

Liberty Mutual also submits that I should consider Weingerl v. Seo, [2003] O.J. No. 4277, in which the evidence of an x-ray clinic manager was not admissible “on the issue of the standard of care pertaining to the prevention of unauthorized acts at privately owned clinics of the sort he managed.”⁶⁴ The unauthorized acts included sexual assault. I see no relevance to the case at hand.

I will now turn to the key points on which Dr. Becker and Dr. Stewart disagree.

F. Reasonable period of time and other confounding factors

The decision on what is a “reasonable period of time after the accident” ultimately comes down to the arbitrator, as Dr. Stewart acknowledged in discussing the meaning of a “reasonable period of time”: “Six hours, these are estimates and we’re talking about law here, not really medicine.”⁶⁵

Dr. Stewart testified that, since a majority of people with low GCS scores recover quickly, he believed the “reasonable period of time after the accident” in the SABS had to relate to a period that correlated to permanent brain damage.

The arbitrator held:

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.⁶⁶

Liberty Mutual submits that the arbitrator erred in law in referring to Dr. Stewart having a “policy,” since he did not use that actual word in his testimony. However, Dr. Stewart used that term in his report: “It has been my policy, based on experience, that a reasonable period of time after an accident is six hours. . . .”⁶⁷ The report forms part of Dr. Stewart’s testimony. In addition, in saying that he and others accept a period of time of roughly six hours before low GCS scores can correlate to permanent brain damage, Dr. Stewart was setting out a course or principle of action — the definition of a policy.⁶⁸ I find no error of law.

The arbitrator found that the provisions of the SABS supported Dr. Becker’s view. She contrasted the GCS score [(e)(i)] test with the specific time limits of more than six months after the accident for the GOS [subclause (e)(ii)] and of a stable condition or the passing of three years since the accident for the 55 per cent whole person impairment [clause (f)] or the marked or extreme mental impairment due to mental or behavioural disorder [clause (g)].⁶⁹ The CAT DAC Manual at p. 1‑4 makes a similar distinction among the provisions of the definition.

Therefore, the arbitrator held “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).”⁷⁰

I agree with the arbitrator. Again, to return to the definition, “catastrophic impairment” means brain impairment that, in respect of an accident, results in a score of 9 or less on the Glasgow Coma Scale. None of the other provisions of the definition require a forecast of the insured’s future condition, so it is unclear why a forecast should be part of the GCS test. The definition on its face requires that the low scores result from a brain impairment, and accordingly the “reasonable period of time” requirement focuses on that point and not on a forecast. The matter would be different if, for instance, catastrophic brain impairment meant brain impairment resulting from GCS scores of 9 or less taken after a reasonable period of time. However, that would then start to resemble the GOS [subclause e(ii)] test, which does indeed look at the outcome of the insured after six months.

Liberty Mutual submits that Dr. Stewart’s approach is “reasonable, balanced and practical” and that Dr. Becker’s and the arbitrator’s approach is too simplistic and does not reflect the intent of the legislature. It submits that the private arbitrator in Unifund Assurance Company and Fletcher (January 18, 2000) applied the correct interpretation of the test. In that case, the arbitrator interpreted the test as predictive, namely that it was intended to be based on a measure which would assist in predicting the outcome of a brain injury. In that, he was relying on the opinion of Dr. Stewart, who had testified in that case as well. In my opinion, that predictive analysis is not called for in the definition, which begins with a brain impairment that results in certain GCS scores. By way of contrast, I find the arbitrator’s conclusion in this case — that the Glasgow Coma Scale [subclause (e)(i)] test allows for enhanced benefits for those who have suffered a brain impairment meeting certain criteria but who have sustained injuries less severe than those contemplated by the Glasgow Outcome Scale [subclause (e)(ii)] test — more compelling.

Furthermore, the facts in Fletcher were very different from those in this case. First, the applicant in that case recovered very quickly. As Keenan J. put it in Holland: “In Fletcher the issue was the consideration of a GCS score higher than 9 six minutes after a score lower than 9.”⁷¹ That is not the case here. I also note that Mr. Young continued to have low scores after the first hour, but the arbitrator did not rely on them because of problems with the record and the additional complexities in interpretation that she referred to. Second, the arbitrator in Fletcher found that “a reasonable period of time” was in a half hour of the accident. Here, the arbitrator considered that an hour was a reasonable period. Third, the arbitrator relied on a CAT DAC manual that had been revised to instruct assessors to apply their judgment in determining and setting out in their report what constituted “a reasonable period of time after the accident by a person trained for that purpose.” However, the current manual simply states that the CAT DAC should formulate an opinion on the claimant’s catastrophic status based on this file review in accordance with the SABS definition. For all these reasons, I find Fletcher distinguishable.

The definition requires that the test be “administered within a reasonable period of time after the accident by a person trained for that purpose.” As the arbitrator noted, the reasonable period will vary from case to case. In my opinion, that reasonable period varies depending on whether the scores can be said to have resulted from a brain impairment. Liberty Mutual submits that the arbitrator’s interpretation of the test could mean that a person who was in an accident where glass exploded and cut her extensively in the face could lead to a score below 9 as well. However, as always, the issue is whether a brain impairment led to a low score. If, instead, something else such as extensive bleeding led to a low score, then that would not be as a result of a brain impairment, so the person would not pass the test.

Also, Liberty Mutual focuses on the test being taken too early. However, the definition requires the GCS to be administered within a reasonable period of time of the accident, not after that period. GCS tests may be invalid because they were taken after the reasonable period. That is what happened in this case with many of the later GCS tests. For instance, Mr. Young was administered paralyzing drugs as part of the intubation. The drugs had an effect for a certain period, as noted by Dr. Milkovich in the lengthy passage from his report I quoted above: “[A]s mentioned earlier, 100mg of Succinylcholine was given which had worn off by the time he was transferred by Air to Sunnybrook.”⁷² Thus, Dr. Becker testified: “And from the moment of the drugs being administered, the GCS is not considered valid for the purpose of (E)(i) in the handling of catastrophic assessments.”⁷³

Similarly, Dr. Becker testified about how the passage of time can affect a reading of the eye opening sub-scale. He referred to the records at Sunnybrook and then contrasted them with the notations made by the ambulance attendants:

THE WITNESS: That’s precisely my point. That’s an example of a qualification where the doctor has written: “Eyes swollen shut,” meaning, “I can’t really measure the eye response out of the GCS.” That’s exactly what I was referring to.

BY MR. BURNS:

Q. Well the doctor is more clear here. More clear than the ambulance attendant was when he examined him.

A. No, not all. No, not at all. The ambulance attendant maybe didn’t have a situation of eyes swollen shut because the accident had just happened and it does take some time for eyes to swell shut. If one interprets that literally, as you’re trying to do, then I would say there was no evidence of eyes swollen shut in the ambulance record where there was evidence of that in the emerg record at Sunnybrook 5 hours later. And that’s perfectly consistent with the clinical knowledge of what happens to these people.⁷⁴

This leads me to another confounding factor Liberty Mutual suggests, as did MDAC in its report. The MDAC assessors considered that the facial trauma could have considerably confounded efforts to develop valid and reliable subscores for the verbal and/or eye-opening tests. On that point, the arbitrator accepted Dr. Becker’s opinion that it was Mr. Young’s level of consciousness due to the nature of his head injuries, rather than his swollen eyes and smash mouth, that resulted in his low eye opening and verbal scores during this period. She noted that Mr. Young also had low motor scores then and that Dr. Becker and Dr. Stewart concurred that the three subscores are expected to be consistent with each other.

I find no error of law in this, but rather a sensible approach. In contrast to the example Liberty Mutual suggests, although Mr. Young had extensive bleeding, his other scores were low as well. The scores were taken in a reasonable period, as they were consistent with a brain impairment. In the insurer’s example, if the low score were only due to bleeding, then once the bleeding was stanched, the scores would rise, suggesting that the score was taken too soon and did not arise from a brain impairment. The contrast with Mr. Young’s situation is that he did suffer a brain impairment and did have low scores arising not just from bleeding. This is reinforced by Dr. Milkovich’s comment in his consultation report that Mr. Young’s airway was obstructing due to his decreased level of consciousness: in other words, it was not blood flow but decreased consciousness that caused him breathing trouble.

G. “Valid and Reliable” and the definition of catastrophic impairment

The arbitrator was not prepared to include the words “valid and reliable” as modifiers of the GCS score:

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. . . . 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.⁷⁵

Keenan J. reached a similar conclusion in Holland v. Pilot Insurance Co., [2004] O.J. No. 2737:

The definition of “catastrophic impairment” in the Statutory Accident Benefits Schedule is a creature of the legislature. This type of regulation is adopted by the legislature after extensive consultation with interested parties, including insurers. If restrictive meaning is to be assigned to the regulation it should be clearly recited in the regulation itself.

Legislation is presumed to be accurate and well‑drafted consequent to the presumption that the legislature does not make mistakes. Thus, if the words of an Act are clear, they must be followed even though they lead to a manifest absurdity Sullivan and Driedger on the Construction of Statutes.⁷⁶

In that case, the issue was whether the effects of alcohol affected the plaintiff’s GCS scores, rendering them unreliable. Keenan J. noted that the DAC reports suggested the GCS scores were “complicated” by the ingestion of alcohol and there was a “good possibility that his Glasgow Coma Score was not only related to head injury, but also related to other factors such as alcohol use” and that the DAC could not “clearly attribute the GCS only to the brain insult sustained in this accident.” The court agreed with another doctor’s assertion that the DAC misread the legislation when it tried to impose limitations to its application that are not clearly set out in the legislation itself, and held that the contrary opinions went no farther than to suggest that the GCS reading may be unreliable because of the presence of alcohol: “The contrary conclusions, as set out above, are replete with qualifiers such as ‘unknown’ ‘may not be directly related to the accident’ and ‘good possibility.’”⁷⁷ The court’s comments apply equally to the qualifiers used by MDAC in this case.

I agree with the sentiments of the arbitrator and the court. It is not necessary to read the terms “valid and reliable” into the legislation. The definition is already strict. Adding in those words would raise the bar to an impossible level. The definition already requires the test to be administered by a person trained for it, so as I have already said, the assumption should be from the beginning that the score is valid. Reading in those terms would validate MDAC’s approach to the question, which essentially was to ignore a score if it was affected in any way by possible confounding factors.

The insurer cites the CAT DAC Manual to the effect that it supposedly agrees with that approach, but in reality the Manual was not followed by MDAC. In my opinion, MDAC applied stricter criteria than the definition required, so it followed neither the definition nor the Manual.

I wish to add that, although MDAC was required to follow the CAT DAC Manual, the arbitrator was not. The only guidelines an arbitrator “shall” consider when interpreting the SABS are those published by the Superintendent of Financial Services (and previously the Commissioner of Insurance) on the interpretation and operation of the SABS.⁷⁸ The CAT DAC Manual specifically states at p. 1‑1: “In the event of a discrepancy between this Guide and the SABS, the SABS shall prevail.”

H. Conclusion

I find nothing in the findings of fact by the arbitrator that equate to an error of law. Her findings with respect to the GCS issue were based on the evidence, and I agree with her interpretation of the law.

The arbitrator did refuse to consider the second MDAC CAT DAC report, which dealt with the 55 per cent whole person [clause (f)] and mental and behavioural disorders [clause (g)] tests. She held that the CAT DAC was premature, in that the criteria for holding it had not been followed. All parties agree that she had no factual basis on which to make that ruling. However, I do not think it would be appropriate to make my own fact finding on the CAT DAC and, in light of my decision above, the issue is moot.

The appeal is dismissed.

IV. EXPENSES

The parties agreed that the arbitrator made no ruling as to the arbitration expenses. Appeal expenses were not addressed at the hearing. The parties are encouraged to resolve the issue, but if they are unable to do so, the matter may be resolved in accordance with Rule 79 of the Dispute Resolution Practice Code. Since the arbitrator who heard this matter is no longer at the Commission, I am prepared to deal with both the arbitration and appeal expenses.