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

Neutral Citation: 2011 ONFSCDRS 115

FSCO A10-000179

BETWEEN:

ALYSE MALLAT

Applicant

and

PERSONAL INSURANCE COMPANY OF CANADA

Insurer

Before: Joyce Miller

Heard: November 29, 2011, in London, Ontario

Appearances: Maia Bent for Ms. Mallat

Philippa Samworth for Personal Insurance Company of Canada

Issues:

The Applicant, Alyse Mallat, was injured in a motor vehicle accident on August 11, 2007. She applied for and received statutory accident benefits from Personal Insurance Company of Canada (“Personal”), payable under the Schedule.¹

On December 3, 2007, Ms. Mallat applied to Personal for a determination of catastrophic impairment. Personal denied her application for a catastrophic designation on the basis of the reports of their expert, Dr. Dost, on April 22, 2008 and June 10, 2008, wherein he opined that the Glasgow Coma Scale (“GCS”) scores were recorded after sedation and intubation and therefore were invalid. Ms. Mallat disagreed with this finding and applied for mediation.

The parties were unable to resolve their disputes through mediation, and Ms. Mallat 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:

Did Ms. Mallat sustain a catastrophic impairment as defined by clause 2(1.2)(e)(i) of the Schedule?

Result:

Ms. Mallat sustained a catastrophic impairment as defined by clause 2(1.2)(e)(i) of the Schedule.

EVIDENCE

The parties proceeded in this Arbitration on an Agreed Statement of Facts, a joint medical brief, factums, and oral submissions.

THE AGREED STATEMENT OF FACTS

Alyse Mallat (date of birth August 6, 1988) was involved in a motor vehicle accident on August 11, 2007. At the time of the accident she was a nursing student and also worked in the summer as Personal Support Worker (PSW) and as a Retail Sales Associate. There is no prior medical history of any significance.
Following the subject collision, Alyse Mallat’s Glasgow Coma Scale (GCS) was assessed by various health care providers. The parties do not challenge the qualifications of any individual who administered GCS scores during treatment after the collision.
Alyse Mallat applied for accident benefits to her own insurer, Personal Insurance Company, with an OCF-1 dated September 14, 2007.
By letter dated December 5, 2007, Ms Mallat applied for a Determination of Catastrophic Impairment enclosing an OCF-19 completed by Dr. Keith Sequeira, physiatrist, dated November 21, 2007.
Personal declined the request for catastrophic impairment status and arranged for a paper review to take place with MDAC. The prime reviewer was Dr. Rehan Dost, neurologist.
By letter dated June 12, 2008, and an accompanying Explanation of Benefits (OCF-9) of the same date the Personal Insurance Company advised the insured that they took the position she did not sustain a catastrophic impairment as she did not satisfy the criteria pursuant to criterion (e), section (i), a GCS score of 9 or lower.
The insured disputed the insurer’s determination and a failed mediation took place at the Financial Services Commission with the Mediator’s Report being issued November 3, 2009.
An Application for Arbitration was commenced by Ms. Mallat with respect to the issue of catastrophic impairment dated January 20, 2010.
The parties have agreed that this arbitration will proceed by way of an Agreed Statement of Facts, a joint brief of documents and a joint brief of relevant medical documentation.

BACKGROUND

At 2:15 p.m., on August 11, 2007, Ms. Mallat, a 19 year old nursing student, was traveling on the highway in her truck, at moderate highway speed, when another vehicle, also traveling at highway speed, crossed over into her lane and hit her vehicle head on.

At the time of impact, Ms. Mallat was wearing a seat belt and the air bag deployed.

The reports of the emergency crew from Thames Emergency Medical Services (EMS), Middlesex-London, which arrived at the scene at 2:52 p.m., and the air ambulance crew, revealed the following facts.

Ms. Mallat was trapped in her vehicle under the dashboard for 30 minutes before she was extricated by the fire department and the Strathroy emergency crew. On arrival, the Thames EMS crew found her placed on a spinal board, with a neck collar and her right leg immobilized.
The report notes that there was a brief loss of consciousness prior to the arrival of the Thames EMS ambulance. It also notes that Ms. Mallat forgets the incident and was unaware of the day.
At 2:55 p.m. Ms. Mallat was administered a Glasgow Coma Scale test (GCS) which resulted in a score of 15.
At 3:15 p.m., Ms. Mallat was transported by ambulance to the Strathroy Airport where she was taken by air ambulance to the London Health Sciences Center.
While being transported to the hospital, Ms. Mallat was administered the strong opiate, Fentanyl,² (given for acute pain due to trauma,) three times between 3:36 p.m. and 3:59 p.m. As well, during this time she was administered the GCS test three times. Each time the result score was 15.

Ms. Mallat arrived at the emergency of the London Health Sciences Center at 4:00 p.m. Her GCS score on arrival at the hospital was 13. There is a note in the records that prior to arriving at emergency she had a GCS score of 14. The record of this test is not found in the medical records. Her GCS score of 13 was followed by four other GCS tests with two scores of 14 and two scores of 13 respectively.

The last GCS test with a score of 13 was administered at 5:30 p.m. prior to a number of assessments and emergency procedures which included a CT scan of her brain, the insertion of a chest tube in her collapsed lung and emergency surgery for her orthopaedic injuries.

It should be noted that the GCS test at 5:30 p.m. with a score of 13 was administered 10 minutes after the drug Propofol had been administered three times within a period of 20 minutes. This drug is a “hypnotic agent for use in the induction and maintenance of general anaesthesia or sedation.”³

Ms. Mallat underwent a three and a half hour emergency surgery for her orthopaedic injuries. An hour and a half after surgery, at 2 a.m., the attending nurse in the Post Anaesthetic Care Unit had recorded that Ms. Mallat “does not arouse easily to verbal or tactile stimulation.” She reiterated her concern to the attending doctor at 2:30 a.m.⁴

Three hours post-surgery Ms. Mallat was transferred to the Trauma Observation Unit. At 4:00 a.m., a half hour after she was admitted to this Unit she was administered a GCS test. Her score was 8. She was administered a second GCS test at 5:30. Again her score was 8.

Ms. Mallat underwent a further 17 GCS tests from 8 a.m. on August 12, 2007 until August 14, 2007 at 6:00 p.m. Her GCS scores during that period were 12; 13; 13; 13; 11; 12; 12; 14; 15; 14; 13; 13; 14; 13; 14; 13; and 14. There was only one normal score of 15 in all of the 17 readings.

As a result of the car accident, Ms. Mallat was diagnosed with a “closed head injury⁵.” On August 15, 2007 Ms. Mallat was assessed and found to be a reasonable candidate for the Acquired Brain Injury Program at Parkwood Hospital.

Ms. Mallat was discharged from the London Health Services Center on August 20, 2007 and transferred to Strathroy General Hospital to wait for the opening of a bed at Parkwood Hospital. On August 27, 2007 she was admitted to Parkwood Hospital where she stayed until September 19, 2007.

Along with her closed head injury, Ms. Mallat was diagnosed with the following injuries as a result of the accident:

Right distal tibia/fibula fracture
Right proximal femur fracture
Left acetabular (hip) fracture
Left scapula fracture
Left rib 2, 3, 4, anterior fractures
Left rib 4, 9, 10, 11, 12, posterior fractures
Left pulmonary contusion
Left pneumothorax
Splenic laceration, grade 2

THE LAW

Section 2(1.2)(e)(i) of the Schedule provides:

1.2 For the purposes of this Regulation, a catastrophic impairment caused by an accident that occurs after September 20, 2003 is:

(e) subject to subsection (1.4), 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

ANALYSIS AND FINDINGS

The burden of proof rests with Ms. Mallat to prove on a balance of probabilities that she has suffered a catastrophic impairment as result of her car accident. She must prove that she received a valid and accurate GCS score of nine or less within a reasonable time after her car accident. For the following reasons I find that Ms. Mallat has satisfied her burden of proof.

(1) Did Ms. Mallet Receive a Valid and Accurate GCS Score?

For the following reasons, I find that the GCS score of 8 taken at 4 a.m. and 5:30 a.m. respectively on August 12, 2007, reflects a valid and accurate result of a properly administered GCS test.

The agreed statement of facts at paragraph 2 states: “The parties do not challenge the qualifications of any individual who administered GCS scores during treatment after the collision.” From this I would reasonably conclude that the individual administering the GCS tests was properly trained, knowledgeable and experienced in carrying out the GCS tests.

For medical reasons, having an accurate reading of the GCS test is very important. The qualified person administering the CGS, at a minimum, would have to know whether any drugs in a patient’s system would interfere with an accurate score of the GCS test.

In my view, it is reasonable to infer from this that a properly trained individual administering the GCS test to Ms. Mallat would take into consideration any drugs that were administered prior to the taking of the GCS test in the final test score.

In the present case, from the time of her accident until prior to her emergency surgery, Ms. Mallat underwent 8 GCS tests. One test occurred at 5:30 p.m. with a result of a score of 13. Prior to being given this test, starting at 5:10 p.m., Ms. Mallat was administered three times, with the powerful opiate Propofol to sedate her for emergency procedures. The third time she was administered with Propofol was at 5:20 p.m., 10 minutes before the GCS test was administered.

In my view, this is an example where one can reasonably infer that the individual administering the GCS test was not only aware that Ms. Mallat had been given this drug 10 minutes before the GCS test, but was aware that the drug, which is fast acting and leaves the system quickly,⁶ would not interfere with a valid and accurate GCS test score.

For these reasons, I give little, if any, weight to the opinion of Personal’s expert, Dr. Dost that intubation and medications administered for the purposes of surgery invalidated Ms. Mallat’s GCS score of 8. I find that Dr. Dost ignored very relevant medical information that he should have taken into consideration when giving his opinion.

I find that based on the hospital records, which Dr. Dost should have reviewed, his assumption that Ms. Mallat was intubated at the time the GCS was administered was clearly wrong.

Dr. Dost missed the very relevant fact that when the surgery was finished at 12:33 a.m., the hospital records show that Ms. Mallat, who was only intubated for the surgery, was no longer intubated post-surgery. Nevertheless, in his very brief report he states that the “sub score” of 8 (taken 3½ hours post-surgery) was invalid because Ms. Mallat was intubated at the time the GCS was administered.

Dr. Dost in his report stated: “The GSC [sic] scores of 8 were recorded post-surgery after the client had been given large doses of medications, which would significantly alter the GCS score, and indeed induce anaesthesia for the necessary surgical procedures. Consequently, the depression in the GCS score is not due to traumatic brain impairment, rather due to the effects of medication. [Emphasis added]

Again, I find that this is an inaccurate reflection of the medical evidence.

The hospital records show that from the time of her accident until her surgery, Ms. Mallat had been administered the powerful drugs, Fentanyl nine times and Propofol three times. Prior to surgery, for emergency procedures, the last time she was administered Propofol was at 5:20 p.m., and the last time she was given Fentanyl was at 8:30 p.m. At 8:50 p.m. she was taken to the operating room, intubated and administered a general anaesthetic.

Dr. Dost, in giving his expert opinion on the effects of medication on the GCS tests, should have been aware that the drug Fentanyl when administered intravenously leaves the system within a half hour to one hour; and when administered inter-muscular between one and two hours. The drug Propofol leaves the system at a faster rate. The evidence shows that “recovery from anaesthesia or sedation is rapid. …the majority of patients are generally awake, responsive to verbal commands and oriented in approximately 7 to 8 min. [sic]⁷”

Based on these facts, the medications opined by Dr. Dost, to “induce anaesthesia for the necessary surgical procedures” would clearly have left Ms. Mallat’s system by the time she was given the GCS test three and a half hours post-surgery. Moreover, there is no medical evidence, whatsoever, that post-surgery Ms. Mallat was “administered large doses of medications” that would “induce anaesthesia.”

Accordingly, for these reasons, I give little weight to Dr. Dost’s opinion that a lower GCS score of 8 was a result of the effect of intubation and medications administered for the purposes of surgery.

In conclusion, I find that if any drugs were administered to Ms. Mallat prior to a GCS test it is reasonable to conclude, on the facts in this case, that this would have been known and taken into consideration by the qualified person who administered the GCS test. Succinctly, I find that a qualified assessor would take the precaution that any drugs in Ms. Mallat’s system would not interfere with a valid and accurate test result.

Accordingly, for these reasons, I find that the two GCS scores of 8 recorded at 4 a.m. and 5:30 a.m. on August 12, 2007 are valid and accurate scores.

2. Was the GCS Administered within a Reasonable Period of Time?

Having found that Ms. Mallat received a valid and accurate GCS test score of 8, the next question that must be answered is whether the GCS test was administered within a reasonable period of time after the accident.

Personal takes the position, that a GCS administered 14 hours after the accident (which yielded a score of 8) was not administered within a reasonable period of time after the accident. Ms. Mallat disagrees and submits that the time period when the GCS was administered is reasonable in relation to the particular facts of this accident.

For the following reasons, I find that the GCS test was administered within a reasonable period of time after the accident.

I find it significant that the legislator in paragraph 2(1.2)(e)(i) used the words “reasonable period of time after the accident” as opposed to providing a specific time period as it does in paragraph 2(1.2)(e)(ii).⁸ I interpret this to mean that the “reasonable period” was chosen to allow for the particular facts of each case to be taken into consideration when deciding what a reasonable time period is.

Succinctly, it is not a question of how early or how late the GCS test, with a score of 9 or less, was administered after the accident. The question to be answered is whether the GCS test was administered within a reasonable period of time after the accident in relation to the facts of the particular accident.

The facts in this case are clear and indisputable. Ms. Mallat was involved in a very serious collision. She suffered multiple serious injuries including a closed head injury. Immediately after the accident, Ms. Mallat underwent numerous emergency assessments and procedures, including three and a half hours of surgery.

No written record was made of what occurred within the first 40 minutes of the accident. However, it is noted in the ambulance report by the Thames EMS ambulance crew that Ms. Mallat had had a brief loss of consciousness before the first GCS was administered at 2:55 p.m.

From about 45 minutes after the accident on August 11, 2007, until 6 p.m. on August 14, 2007, 27 GCS tests were administered; this included nineteen GCS tests post-surgery starting at 4 a.m. on August 12, 2007. One can reasonably infer from this that there was a serious medical concern regarding the effects of the closed head injury Ms. Mallat received as a result of her accident.

The evidence reveals that, an hour and a half after the surgery, at 2 a.m., the attending nurse in the Post Anaesthetic Care Unit had recorded that Ms. Mallat “does not arouse easily to verbal or tactile stimulation.” She reiterated her concern to the attending doctor at 2:30 a.m.⁹

According to the medical records at 3:30 a.m., on the recommendation of the doctor in charge, Ms. Mallat was transferred to the Trauma Observation Unit. Her first GCS test was taken within a half hour of her transfer.

I find that the seriousness of the accident and the multiple traumatic injuries, that Ms. Mallat received required her to undergo numerous emergency assessments and procedures immediately after her arrival at the hospital.

The emergency procedures, as noted in the hospital records, included multiple administrations of the opiate Fentanyl to alleviate her pain, the multiple administration of the strong, fast acting, anaesthetic/sedative, Propofol, to assist in the “reduction,” before surgery, of her many fractures,¹⁰ a CT scan of her brain, a tube inserted into her chest to inflate her collapsed lung, intubation and sedation prior to surgery, three and a half hours of emergency surgery with respect to her orthopaedic injuries, as well as, approximately three hours of post anaesthetic care before being transferred to the Trauma Observation Unit.

Based on the particular facts of this very serious car accident, with its multiple emergency procedures, I find that a valid GCS test, with a score of 8, administered within a half hour after Ms. Mallat was transferred out of emergency care to the Trauma Observation Unit was “administered within a reasonable period of time after the accident.”

Based on the medical evidence, I also find that, Ms. Mallet suffered a brain impairment as a result of her car accident. Accordingly, I find that it is more likely than not that the GCS score of 8, administered within a reasonable time after the accident, is as a result of the brain impairment that Ms. Mallat suffered from her motor vehicle accident.

Accordingly, for all these reasons, I find that pursuant to paragraph 2(1.2)(e)(i) of the Schedule Ms. Mallat suffered a catastrophic impairment as a result of her motor vehicle accident on August 11, 2007.

EXPENSES:

If within 30 days of receipt of this decision the parties cannot agree on expenses, I may be spoken to on the issue of expenses.

December 16, 2011

Joyce Miller Arbitrator

Date