Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2010 ONFSCDRS 59

FSCO A08-001383

BETWEEN:

WAYNE WINDSOR

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

REASONS FOR DECISION

Before: Jeffrey Rogers

Heard: March 29, 30 and 31, 2010, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Salvatore Shaw, solicitor for Mr. Windsor Mr. Todd Wasserman, solicitor for Motor Vehicle Accident Claims Fund

Issues:

1. Did Mr. Windsor sustain a catastrophic impairment, within the meaning of section 2(1.1)(e)(i) of the Schedule, as a result of the accident of June 25, 2001?

2. Is either party liable to pay the other’s expenses of the arbitration under section 282(11) of the Insurance Act, R.S.O. 1990, c. I.8?

Result:

1. Mr. Windsor did not sustain a catastrophic impairment, within the meaning of section 2(1.1)(e)(i) of the Schedule, as a result of the accident of June 25, 2001.

2. The decision on entitlement to expenses is reserved, to be determined in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

EVIDENCE AND ANALYSIS:

Background

The Applicant, Wayne Windsor, was injured in a motor vehicle accident on June 25, 2001. He applied for and received statutory accident benefits from Motor Vehicle Accident Claims Fund (“MVAC Fund”), payable under the Schedule.¹ In 2007, Mr. Windsor made an Application for Determination of Catastrophic Impairment. MVAC Fund did not agree that he sustained a catastrophic impairment. The parties were unable to resolve their dispute through mediation, and Mr. Windsor applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Mr. Windsor was one of six occupants of a 1985 Chevrolet Blazer involved in a single-vehicle accident that took place on Regional Road 1, near Uxbridge, Ontario. The Blazer was travelling at a high rate of speed, northbound on Regional Route 1, when the driver lost control. The Blazer left the east side of the roadway, rolled several times and ended up in a ravine, lodged against a large tree. All of the occupants were ejected.

Paramedics arrived within minutes of the accident. The first two on the scene were Terry Lowe and Lee Moschini. They served as a triage unit. They pulled into a driveway at 9249 Regional Route 1. Four of the 6 occupants were in the vicinity of the driveway. They immediately ascertained that they could be of no assistance to one passenger who was found just north of the driveway. He was pronounced dead at the scene. Mr. Lowe and Mr. Moschini found the two remaining passengers in the ravine to the south of the driveway, closer to where the Blazer ended up. One of the two passengers found in the ravine was more seriously injured than the other. He was found imbedded in the hillside.

The only passenger clearly identified at the scene was the deceased. He was identified as Geoffrey Deeks. The other passengers were later identified as Robert Hamilton, Jason Brown, Brian Windsor, Allan Windsor and the applicant, Wayne Windsor. Mr. Windsor has no memory of the accident.

Parties’ Positions

Mr. Windsor’s position is that he was the passenger found in the ravine, imbedded in the hillside. He relies on the opinion of Mr. Edward S. McCarron, an expert in accident reconstruction. He also relies on the evidence of Mr. Lowe and Mr. Moschini. MVAC Fund’s position is that the evidence does not support the conclusion that Mr. Windsor was the passenger found imbedded in the hillside.

Section 2(1.1)(e)(i) of the Schedule defines catastrophic impairment as “brain impairment that...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...”

There is no written record of a Glasgow Coma Scale (GCS) score of 9 or less for Mr. Windsor, except when he was sedated. The first written record of a GCS score is found in the Ambulance Call Report² (“ACR”) prepared by the paramedics who took the imbedded passenger from the scene on the instructions of Mr. Lowe and Mr. Moschini. They recorded a score of 13. Mr. Windsor relies on the oral evidence of Mr. Lowe and Mr. Moschini. They testified that they were not required to make a written record, but they conducted a GCS test and assigned a score of 3 to the person they found imbedded in the hillside.

MVAC Fund argues that their evidence should not be accepted in this regard. MVAC fund concedes that Mr. Windsor sustained a brain impairment as a result of the accident. It is also not disputed that Mr. Lowe and Mr. Moschini are persons trained in administering the GCS test.

The issues to be determined are therefore:

1. Was Mr. Windsor the person found imbedded in the hillside?

2. If Mr. Windsor was the person found imbedded in the hillside, did Mr. Lowe and Mr. Moschini administer a GCS test, resulting in a GCS score of 9 or less?

Identification

As noted above, none of the passengers was identified at the scene, except the deceased Geoffrey Deeks. The survivors did not provide clear information about who was driving at the time of the accident. MVAC Fund defended tort actions resulting from the accident. Its solicitors in those actions retained the engineering firm of Hastings, Boulding, Correia to conduct an investigation and render an opinion on the identity of the driver. Their report³, including the underlying documents and records, was introduced into evidence by Mr. Windsor. The report was authored by Edward S. McCarron, a mechanical engineer. Mr. McCarron has provided expert testimony on accident reconstruction numerous times. I accepted his qualification as an expert in accident reconstruction.

Mr. McCarron reviewed the available information contained in police reports and photographs, ambulance and hospital records and witness statements. He also conducted a computer simulation of the accident. Although ultimately unable to identify the driver, Mr. McCarron did form an opinion on the rest positions of all of the passengers. He concluded that Mr. Windsor was the passenger found imbedded in the hillside. However, his opinion on this issue is not based upon application of his engineering expertise to known data. It is based entirely upon his analysis of the available statements, reports and records. That is not his area of expertise. I therefore give his opinion no weight.

I have nevertheless concluded that the documentary evidence, along with the oral evidence of Mr. Lowe and Mr. Moschini, support the finding that Mr. Windsor was the passenger imbedded in the hillside.

The records, reports and the oral evidence are consistent on where the passengers ended up. Geoffrey Deeks, the deceased, was lying north of the driveway. There were two passengers lying on the driveway and one passenger walking around on the driveway, shouting obscenities. There were two passengers in the ravine.

The primary responsibility of Mr. Lowe and Mr. Moschini as the first paramedics on the scene was to determine what equipment was required for removal of the injured. After doing that, they would render first aid. They both testified that it was immediately apparent that they would require more equipment to transport the injured. Mr. Lowe stayed on the driveway calling for equipment, while Mr. Moschini went down into the ravine. Part of their triage duty was to prioritize use of the available equipment. They both testified that they assessed the person imbedded in the hillside as the first priority for removal. They testified that the rest position of this passenger stood out in their memory because he left his silhouette in the hillside when they removed him. They agreed that the priority removal described for the person identified as Mr. Windsor in the ACR reflects their assessment of the imbedded person. Although they could not give a clear physical description, they both testified that the medical description of this patient accords with their memory of the person they found imbedded.

The ACR does not mention the source of the information that the patient is Mr. Windsor, but it is known that reliable sources were available. It is known that there was at least one passenger at the scene who was able to provide information. The ACR itself notes that information that the patient was allergic to penicillin was obtained from a friend. Further, the injured person was assessed to have a GCS score of 13. That means that he might have been able to identify himself. There is no evidence that the identification in the ACR is not accurate. I accept the accuracy of the ACR.

The clear link between the evidence of Mr. Lowe and Mr. Moschini and the person identified in the ACR as Mr. Windsor satisfies me that Mr. Windsor was the person found imbedded in the hillside.

GCS scores

The GCS test incorporated into section 2(1.1)(e)(i) of the Schedule provides a numerical measure of level of consciousness. It is based on performance in three areas:

1. eye opening;

2. verbal response; and

3. motor response.

The person performing the test assigns a numerical score in each of these areas and usually completes a chart similar to the one below. The lowest score is 3 and the highest is 15.

Eye Opening

Spontaneously 4 To Speech 3 To Pain 2 None 1

Verbal Response

Oriented 5 Confused 4 Inappropriate Words 3 Incomprehensible Sounds 2 None 1

Motor Response

Obeys Commands 6 Localizes Pain 5 Withdraws to Pain 4 Flexion to Pain 3 Extension to Pain 2 None 1

The definition contained in section 2(1.1)(e)(i) of the Schedule contains four elements:

• Sustaining a brain impairment as a result of the accident;

• The brain impairment results in a GCS score of 9 or less;

• The GCS test was administered within a reasonable period after the accident; and

• The GCS test was administered by someone trained for that purpose

As noted above, there is no recorded GCS score of 9 or less for Mr. Windsor, when he was not sedated.

At the time of the accident, Mr. Lowe and Mr. Moschini were paramedics with Durham Region, stationed at Uxbridge, minutes away from the scene of the accident. Mr. Lowe had been a paramedic for about 27 years. Mr. Moschini was less experienced. He had been a paramedic for about 2 years. They were both accepted as expert witnesses in the limited capacity of persons trained for the purpose of administering the GCS test. They both testified that this accident stood out in their memory. They both testified that they assigned a GCS score of 3 to Mr. Windsor, after assessing him at the scene.

Because of the horrific aftermath of this accident, I accept the evidence of Mr. Lowe and Mr. Moschini that this accident stands out in their memory. Although I do not doubt their sincerity, I do not accept that they have total recall of all the details, almost 9 years after the events occurred, without notes or any other means of refreshing their memory. Having considered the internal consistency of their testimony, the consistency of their testimony with known facts, their consistency with each other and having considered whether their testimony accords with “probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”⁴ , I do not accept their evidence that they administered a GCS test on the person they found imbedded in the hillside.

Mr. Lowe and Mr. Moschini agree that their responsibilities at the scene of the accident were governed by Basic Life Support and Patient Care Standards, Version 1.1, dated September 1999, developed by the Ontario Ministry of Health (BLS)⁵. Section 3, Paragraph 7(i) on page 91 of the BLS, sets out the responsibility of a triage unit for a patient found with an altered level of consciousness. It states as follows:

Use the mnemonic AVPU to gauge level of consciousness –Alert, responds to Voice, responds to Pain, Unresponsive. If level of consciousness is reduced, transfer and secure the patient to a long backboard or scoop and prepare to “load and go”. Ensure that the airway is patent and ventilation is adequate.

The BLS does not require the triage unit to administer a GCS test. The fact that BLS does not require Mr. Lowe and Mr. Moschini to administer a GCS test makes it less likely that they did so. That probability is heightened by their testimony that shows that they otherwise followed the BLS. The BLS requires three steps: assess the patient, secure to a backboard, ensure that the airway is patent. They testified that, after their initial assessment, they secured Mr. Windsor to a backboard and, because he had a compromised airway, they inserted a nasal airway.

Mr. Lowe and Mr. Moschini agree that, at the time of the accident, it was not the practice of Durham Region to require paramedics serving as a triage unit to fill out an ACR or keep any other record of their activities. Therefore, they did not complete an ACR or keep any records. Mr. Lowe testified that the AVPU elicits similar information to a GCS test and, if he applies the AVPU, he would have a good idea of what the GCS would be. Mr. Moschini testified that the AVPU is an abbreviated version of the GCS.

There is no evidence that one has to go through the same steps as the GCS test, in applying the AVPU. Consistent with its use in triage, it appears that the AVPU gives a grosser, less focussed assessment of level of consciousness. For instance, the AVPU does not specifically address eye opening as the GCS does and it places verbal response in a general category, rather than on a scale of 1 to 5 as the GCS does.

I find that the absence of a requirement to record details further heightens the likelihood that Mr. Lowe and Mr. Moschini employed the grosser test of the AVPU, rather than the specific GCS.

Upon their evidence as a whole, it appears that the test that Mr. Lowe and Mr. Moschini administered was the AVPU. They apparently assigned a GCS score at a later date. Both Mr. Lowe and Mr. Moschini recall that, upon their arrival at the scene, Mr. Lowe remained on the driveway making calls for additional equipment to remove the injured, while Mr. Moschini went into the ravine. Mr. Lowe then went into ravine and found Mr. Moschini already attending to Mr. Windsor. Mr. Windsor was imbedded in the hillside, face down. Using the term from the AVPU, Mr. Lowe described this patient as “unresponsive”. He testified that Mr. Moschini called for him to assist in the ravine and that he assumes that it was because Mr. Windsor was unresponsive.

Mr. Lowe’s testimony was that he administered a GCS test on Mr. Windsor, as he had always done. Although he could not specifically recall, he would have asked a question such as “Can you hear me?” to assess verbal response. That seems unlikely because Mr. Moschini was already attending to Mr. Windsor. Mr. Lowe testified that he assigned an initial GCS score of 3 to Mr. Windsor. He gave a score of 1 in each category. However, he agreed that he did not apply painful stimulus, or any reasonable substitute for it, in assigning the score. It is necessary to apply painful stimulus, before assigning a score of 1 for eye opening or motor response. Mr. Lowe testified that Mr. Moschini might have applied painful stimulus. By this testimony he appears to concede that Mr. Moschini had already assessed Mr. Windsor’s level of consciousness, by the time he went down to the ravine. In any event, Mr. Lowe’s evidence that he did not apply painful stimulus means that he did not administer a GCS test on Mr. Windsor that could have resulted in a score of 3.

Mr. Moschini also testified that he administered a GCS test on Mr. Windsor. His testimony was that there was no verbal response, the eye that was visible was not open and there was no response when he administered a quick trapezium squeeze. Both Mr. Lowe and Mr. Moschini testified that this would be an appropriate method applying painful stimulus, given the position in which they found Mr. Windsor. Mr. Moschini testified that he gave a GCS score of 3.

It could be argued that, because Mr. Lowe and Mr. Moschini agree on the GCS score of 3 their memory is clear on that issue. However, it is clear that, although prepared to assign a score, Mr. Lowe did not administer the test. In addition, the disagreement between Mr. Lowe and Mr. Moschini on other related facts supports the conclusion that their memory is not entirely clear. Mr. Moschini testified that he kept a close watch on Mr. Windsor to monitor any improvement during the approximately 3 minutes he spent with him. He testified that his GCS score never changed. Mr. Lowe testified that his score increased to 4 because Mr. Windsor made incomprehensible sounds before he was taken by the transporting crew. Mr. Moschini testified that he saw 5 injured persons that day (he did not see the deceased) and would assign a GCS score of 3 to 4 of the 5. The exception was the person walking around on the driveway. Mr. Lowe assigned a score of 13 or 14 to the two persons lying on the driveway and 14 to the other person in the ravine.

Further, Mr. Moschini testified that he did not touch any of the injured persons, except for Mr. Windsor. As noted above, a GCS score of 3 cannot be assigned, without applying painful stimulus. Mr. Moschini’s evidence that he assigned GCS scores of 3 to persons he did not touch means that he is either prepared to assign a GCS score without administering the test or he has limited expertise in conducting it.

Two further factors influence my rejection of Mr. Moschini’s evidence. First, Mr. Moschini testified that he was surprised that the person he found on the hillside survived. When it was brought to his attention that the ACR shows a recorded GCS score of 13 for Mr. Windsor shortly after he recalled assigning a score of 3, he testified that his experience tells him that the score should not have increased in that way. He gave this testimony knowing that paramedics had earlier suctioned Mr. Windsor’s airway, a procedure that could have contributed to an increased GCS score. The discrepancy between the score Mr. Moschini recalls and the one recorded in the ACR could mean that there was a surprisingly rapid increase in Mr. Windsor’s level of consciousness. It could equally mean that Mr. Moschini’s memory of his initial level if consciousness is flawed.

Second, Mr. Moschini testified that he told the transporting paramedics that he had assigned Mr. Windsor a GCS score of 3 and that, if he had completed an ACR as a transporting paramedic, he would have recorded that information. Nevertheless, that information is not recorded in the ACR. Perhaps Mr. Moschini told them of his GCS score but the practice of the transporting crew was different from his own. But the crew did record other information about the status quo upon their arrival. The ACR includes information that the fire department was on scene, that Mr. Moschini’s crew (3125) was on scene, that a nasal airway was in place, that the patient was boarded and collared and that the crew was instructed to remove this patient because the patient had a compromised airway. Having recorded all of that information about the status quo, one would expect the transporting crew to record a GCS score provided. Indeed, they would have been prompted to do so, when they recorded the scores of the GCS tests they administered. In these circumstances, I find it unlikely that Mr. Moschini’s recollection of informing the transporting crew of a GCS score of 3 is accurate. This finding reinforces my conclusion that Mr. Moschini’s recollection of administering a GCS test and assigning a score of 3 is not reliable.

One further note: Mr. Moschini was asked his opinion on the cause of Mr. Windsor’s low GCS score. He testified that he attributed it to “massive head injury”. Assuming that he included brain impairment in that phrase, his opinion was the only evidence on the issue of what caused the GCS score he recalls. However, he was not qualified as an expert on the cause of compromised GCS scores. His expertise is limited to administering the test. Therefore, I received no evidence upon which it could be found that Mr. Windsor’s brain impairment caused or contributed to the GCS scores upon which he relies in this arbitration.

EXPENSES:

The parties made no submissions on expenses. If they are unable to resolve this issue, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 10, 2010

Jeffrey Rogers Date

Arbitrator

Financial Services Commission of Ontario Commission des services financiers de l’Ontario

Neutral Citation: 2010 ONFSCDRS 59

FSCO A08-001383

BETWEEN:

WAYNE WINDSOR

Applicant

and

MOTOR VEHICLE ACCIDENT CLAIMS FUND

Insurer

ARBITRATION ORDER

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

1. Mr. Windsor did not sustain a catastrophic impairment, within the meaning of section 2(1.1)(e)(i) of the Schedule, as a result of the accident of June 25, 2001.

2. If they are unable to resolve the issue of expenses, either party may make an appointment for me to determine the matter in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

May 10, 2010

Jeffrey Rogers Date

Arbitrator

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Exhibit 7, Brief — Volume 2, Tab 7
3. 3Exhibit 4, Brief - Volume 1, Tab 5
4. 4Faryna v. Chorny 1951 CanLII 252 (BC CA), [1952], 2 D.L.R. 354 (B.C.C.A.)
5. 5Exhibit 8