Security National Insurance Co./Monnex Insurance Mgmt. Inc. v. Manos Hodges, 2013 ONFSCDRS 26

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2013 ONFSCDRS 26

Appeal P12-00029

OFFICE OF THE DIRECTOR OF ARBITRATIONS

SECURITY NATIONAL INSURANCE CO./MONNEX INSURANCE MGMT. INC.

Appellant

and

MANOS HODGES

Respondent

BEFORE:

Delegate Lawrence Blackman

REPRESENTATIVES:

Ms. Linda Matthews and Ms. Laura Hodgins for the Appellant, Security National Insurance Co./ Monnex Insurance Mgmt. Inc.

Ms. Tammy Ring and Mr. Marc A. Flisfeder for the Respondent, Mr. Manos Hodges

HEARING DATE:

November 30, 2012

APPEAL ORDER

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

1. The Arbitrator’s May 22, 2012 decision is confirmed and this appeal is dismissed.

2. If the parties are unable to agree on the legal expenses of this appeal, pursuant to Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – August 2011), an expense hearing shall be requested, as set out below, within thirty days of the date of this decision.

February 22, 2013

Lawrence Blackman Director’s Delegate

Date

REASONS FOR DECISION

I. BACKGROUND AND NATURE OF THE APPEAL

Subsection 283(1) of the Insurance Act, R.S.O. 1990, c. I.8, restricts appeals from the order of an arbitrator to questions of law. The parties agree that an appellate officer is bound by the Ontario Court of Appeal. An arbitrator is similarly bound. The Court of Appeal, in Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571, held that the meaning of catastrophic impairment in Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96, s. 5(1) is not a medical test. It is a legal test.

The subsection 5(1) above that was before the Court of Appeal pertains to tort proceedings. The subsection mirrors the wording in subparagraph 2(1.2)(e)(i) of the Schedule.¹ The latter applies to first-party no-fault benefit entitlement arising from motor vehicle accidents occurring after September 30, 2003 and is applicable to this case as the accident in question took place in 2009. In eighty-two paragraphs of written submissions, the Appellant notes Liu once, and then only in essentially repeating the statutory provision.

Decisions of the Divisional Court are also binding on this Tribunal. Liberty Mutual Insurance Company v. Young, 2006 CanLII 7286 (ON SCDC),² addresses subparagraph 2(1.1)(e)(i) of the Schedule, which, other than applying to accidents occurring before October 1, 2003, also mirrors subparagraph 2(1.2)(e)(i). The Appellant notes this decision in its written submissions once, but only in the context of the standard of review and the misapprehension of evidence.

In contrast to its limited reference to binding case law, the Appellant devotes twenty paragraphs of its written submissions to the opinion evidence of Dr. H. Berry, neurologist.

The tacit essence of this appeal is that the Court of Appeal got it wrong; that subparagraph 2(1.2)(e)(i) of the Schedule does set out a medical test and that Arbitrator Renahan (the “Arbitrator”) erred in law in his May 22, 2012 decision in failing to consider or in misapprehending Dr. Berry’s evidence as to how that provision should be interpreted.

Dr. Berry strongly enunciated his views regarding the legislation in question, the principles set out in the relevant case law and medical opinion evidence that differed from his. Dr. Berry was tendered “as an expert in the treatment and diagnosis of brain injury, assessment of Glasgow Coma Scale and all aspects of neurology that are applicable to this case.” He was not qualified as an expert in the Schedule or in any aspect of law. His personal views in that regard, however able and experienced his expertise, do not overrule any adjudicative body. I am not persuaded that the Arbitrator erred in law in failing to follow Dr. Berry’s opinion as to what subparagraph 2(1.2)(e)(i) of the Schedule ought to mean.

This appeal arises out of an August 5, 2009 accident involving the Respondent, Mr. Manos Hodges. The Respondent applied to his first-party automobile insurer, the Appellant Security National Insurance Co./Monnex Insurance Mgmt. Inc., for statutory accident benefits available under the Schedule. He submits that as a result of the accident he sustained injuries amounting to a catastrophic impairment, which as defined in subparagraph 2(1.2)(e)(i) of the Schedule, 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,

The Appellant disputes that the Respondent sustained a catastrophic impairment. Such a finding would entitle the Respondent to apply for an enhanced level of statutory accident benefits.

The Arbitrator found that the Respondent had met the subparagraph 2(1.2)(e)(i) of the Schedule test in suffering a brain impairment that resulted in an August 9, 2009 Glasgow Coma Scale

(“GCS”) score of 9 or less.

The Respondent’s accident took place at 10:50 p.m. on August 5, 2009. The Arbitrator found that the Respondent suffered significant injuries including a torn diaphragm, a lacerated liver and leg fractures. Subsequent testing revealed a subdural hematoma (a layer of blood over the brain, in the opinion evidence of Dr. Berry, at page 189 of his arbitration transcript) and a subarachnoid hemorrhage (bleeding around the brain, if the brain is bruised and shaken up, in the opinion evidence of Dr. Berry, at page 190).

Dr. Berry testified, at page 12, that the GCS score is “a convenient indication of level of consciousness.” GCS scores of 11 (the maximum score, that is, without any impairment, being 15) were taken within an hour of the accident by ambulance attendants. On arrival at hospital, after being intubated, the Respondent’s GCS score was 3. Following surgery on August 6, 2009, his GCS score remained at 3. The next day, after the tube was removed and certain medications reduced to an as needed basis, the Respondent’s GCS score improved to 10.

On August 8th the Respondent’s GCS score was 9 or 10. On August 9th it varied, according to a chronological chart the parties agreed formed part of the appeal record, between 9 and 14. On August 10th it varied, according to the same chart, between 7 and 14. Over the next three days, the GCS score varied between 12 and 15.

The Arbitrator accepted the expert opinions of Dr. Berry, called by the Appellant, and Dr. H. Becker, a family doctor with expertise in catastrophic assessments, called by the Respondent, that the Respondent had suffered brain impairment as a result of the accident.

The Arbitrator held that “if a patient is untestable in all three domains of the Glasgow Coma Scale, the GCS score is untestable.” He found:

In Mr. Hodges’ case, where he had a GCS score of 3 while he was intubated and medically paralyzed, his GCS score of 3 meant that his GCS score was untestable. A score which means that the level of consciousness is untestable cannot satisfy the test for catastrophic impairment.

The Arbitrator noted that the Court of Appeal in Liu considered the same definition of catastrophic impairment, but in the context of a tort claim for health care expenses. Following the Court’s legal analysis, the Arbitrator held:

… the GCS test is not a scientifically precise measurement of level of consciousness. Therefore, I am not required by the legislation to undertake a scientific analysis of what Mr. Hodges’ GCS score might have been had there not been complicating factors. Nor am I required to question the validity of the score because of the usual complicating factors which might affect the GCS score of a patient like Mr. Hodges. A GCS score of 9 or less is relatively easy to determine.

I therefore accept the GCS readings of 9 as satisfying that part of the test.

The Arbitrator held that whether a GCS score should be taken was a medical decision and that he had heard no evidence suggesting it was unreasonable to require GCS scoring four days post-accident. The Arbitrator found that an August 6, 2009 CT scan identified bleeding in the Respondent’s head and that it was reasonable to use the GCS test as a simple procedure to determine whether the area of bleeding had shrunk or grown until the doctors were satisfied that the risk of further bleeding had ended. On this basis, the Arbitrator found that the August 9, 2009 GCS test was taken within a reasonable period of time after the accident.

II. PRELIMINARY APPEAL DECISION

My August 13, 2012 preliminary appeal order exercised my discretion under Rule 51.2(c) of the Dispute Resolution Practice Code (Fourth Edition, Updated − August 2011) to reject this appeal on the basis the appeal was from a preliminary order that did not finally decide the issues in dispute. Applying the applicable case law,³ I found:

1. The issues raised in the appeal were not novel. The issues in dispute had been addressed, in part, by the Court of Appeal in Liu and the Divisional Court in Young. The issue of confounding factors had been addressed by Delegate Evans in Liberty Mutual Insurance Company and Young, (FSCO P03-00043, June 20, 2005), upheld on judicial review by the Divisional Court, noted above.

2. This appeal would not decide all of the substantive issues in dispute. Rather, the disputed issues included claims that were not dependent on a finding of catastrophic impairment.

3. The delay that would result from accepting this appeal prejudiced the Respondent as the substantive arbitration hearing had been set, a year earlier, for October 2012.

My September 28, 2012 letter confirmed the parties’ advice that the arbitration had subsequently settled and the arbitration hearing cancelled. On consent, I exercised my discretion to accept this appeal. My November 23, 2012 letter confirmed counsel’s letter to arbitration that, on consent, the arbitration file should be closed.

III. THE APPELLANT’S SUBMISSIONS

The Appellant submits that the Arbitrator erred in law in two respects, by concluding:

1. GCS scores taken after the Respondent received consciousness-lowering drugs were valid for determining catastrophic impairment.

2. GCS scores taken more than three days after the accident met the criteria of a “reasonable time after the accident” under subparagraph 2(1.2)(e)(i) of the Schedule.

The Appellant argues that Siegel v. Ontario (Director, Disability Support Program), [2011] O.J. No. 5385, (Div. Ct.), held that an error of law includes a misapprehension of relevant evidence and a failure to consider or appreciate the significance of relevant evidence. Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, held that if a tribunal ignores items of evidence it was required to consider, then it erred in law.

In this regard, the Appellant submits:

1. Dr. Berry testified that Fentanyl and Propofol were administered post-accident to the Respondent. These are powerful narcotics that would reduce a patient’s level of consciousness. Medication administered in response to the Respondent’s rising blood pressure could also reduce consciousness.

In Dr. Berry’s opinion, at page 61 of his transcript, the three GCS scores of 9 recorded August 9, 2009 were probably not a reflection of the Respondent’s level of brain impairment or brain injury, because the doctors were not certain until they had the MRI scan done. Rather, the GCS scores reflected ten factors influencing the Respondent’s post-surgical recovery, being high blood pressure, intravenous morphine, medications administered to control the high blood pressure, comorbidity, hyperventilation, abnormal blood gas values, abnormal pH levels, a collapsed lung, pulmonary small blood vessel changes and the accumulation of carbon dioxide.

2. Dr. Berry testified that after the first 24 hours following initial injury there are better prognostic tools available in a hospital setting, such as CT scans and MRIs, to scientifically determine brain impairment or injury.

Brain imaging studies such as CT scans, in Dr. Berry’s expert opinion, are the final authority. The August 6, 2009 CT head scan did not show a significant injury that would correspond with a GCS score of 9 or less. Rather, on the basis of that scan Dr. Berry would have expected a GCS score of between 12 and 14. The subsequent MRI confirmed that the brain injury was resolving. In Dr. Berry’s view, the Respondent’s lung, chest and other injuries were complicating his recovery.

3. Dr. Berry testified that GCS scores 56 hours post-accident are not taken within a reasonable time as they are not indicative of the severity of the Respondent’s brain injury. The diagnostic scans made it clear the Respondent’s delayed recovery was not the result of a worsening brain injury. Rather, the GCS scores recorded within the first hour were all reasonable indicators regarding the Respondent’s level of brain impairment.

4. Dr. Becker conceded that his area of expertise was family medicine and that neurologists are better trained to diagnose and treat brain injuries.

The Appellant stresses that its main point is that the August 9, 2009 GCS scores are not reasonable for the purpose of determining brain injury as there are better tests, such as the August 6 and 7, 2009 CT scans and the August 11th MRI, that show the Respondent improving.

The Appellant further argues that there was no evidence before the Arbitrator that it was reasonable to rely on the August 9, 2009 scores. Nor was there any evidence the brain injury was a material contributing factor to those scores. The GCS scores of 9 or less taken more than three days after the accident were not the result of brain impairment. Rather, they “were, as Dr. Berry testified, the results of multiple extraneous factors related to treatment of Mr. Hodges’ other orthopaedic and internal injuries.” Further, the Respondent had other GCS scores that disqualified him from the catastrophic impairment designation.

The Arbitrator stated that he heard no reliable evidence of how much consciousness-lowering medicine was in the Respondent’s body at the time the GCS scores of 9 were taken and how that affected those scores. The Appellant argues that the Arbitrator was presented with detailed medical records evidencing the types and the quantities of medications at the times in question. He also received Dr. Berry’s evidence that these drugs and multiple other factors likely contributed to the lower August 9, 2009 scores.

The Appellant submits that while Delegate Evans held in Young that the modifiers “valid and reliable” ought not to be read into the legislation, his decision reflects “a consideration of the validity of the subject GCS scores and the importance of ensuring that the GCS scores under consideration are related to the brain impairment and not another, concurrent injury.”

The Appellant argues that Delegate Evans found in Young that if the insured’s seizures were transitory, that would suggest that the low GCS scores resulted from the transitory phenomenon and not the brain impairment. Further, intubation, paralyzing drugs, bleeding and facial trauma could invalidate a GCS score. The medical evidence before the arbitrator was determinative.

The Appellant submits that neither Young nor Liu determined what is “within a reasonable time after an accident.” The Appellant argues that no prior case found that a reasonable time for administering the GCS test was more than twenty-four hours post-accident.

The Appellant argues that the legislative test should have read into to it that the GCS score must be indicative of a catastrophic brain injury, as stated by Dr. Berry. GCS scores are incorporated into the Schedule to determine catastrophic impairment, it submits, because they offer an indication as to the severity of the brain injury and, hence, some prognostic value. The Appellant argues that the legislative intent is to ensure that scores with virtually no prognostic value in respect of brain impairment are not used to determine catastrophic impairment.

Scores taken while an insured is intubated are invalid, the Appellant submits, because they offer zero prognostic value. The same is true for scores taken the fourth day following trauma as they say nothing about the underlying brain injury.

The Appellant argues that the only evidence as to what was a reasonable time after the accident is that of Dr. Berry. In response to the Appellant’s question whether the initial GCS scores were a better indicator of outcome than any score taken four or five days after the accident, Dr. Becker answered that he was not a neurologist.

Dr. Berry, however, is a neurological expert. The Appellant submits there is no difference between the statutory test and its question to Dr. Berry, at page 88 of his transcript: “what is your opinion as to whether or not [day 3 or more following the accident] is a reasonable period after the accident to accept the GCS scores as indicative of a catastrophic brain injury.” Dr. Berry stated that in this patient, it was not.

The Appellant argues that the Arbitrator erred in not apprehending that GCS scores taken four days post-accident have limited prognostic value. Hence, they cannot be considered to have been taken within a reasonable period of time after the accident. Again, it submits the Arbitrator failed to consider that the post-accident CT scans and MRI were better tests to determine catastrophic impairment. Those tests confirmed that the Respondent’s brain injury was improving, corresponding with the higher GCS scores. The lower GCS scores were better explained by other factors, including the Respondent’s delayed recovery from his orthopaedic and internal injuries.

The Arbitrator thus, it is submitted, incorrectly framed the statutory test when he found there was no evidence to suggest that the doctors’ requisitioned GCS testing after four days was unreasonable. While it may have been reasonable to continue to measure the effects of certain medications during the recovery period, the reasonableness test is not simply that there is some potential utility to treating nurses and physicians.

Accordingly, the Appellant asks that the Arbitrator’s May 22, 2012 order be set aside with a finding that the Respondent is not catastrophically impaired pursuant to subparagraph 2(1.2)(e)(i) of the Schedule.

IV. THE RESPONDENT’S SUBMISSIONS

The Respondent submits:

1. The Appellant is asking that the imaging reports, rather than the GCS scores, be considered when assessing whether a person is catastrophically impaired, creating a new statutory test. In any event, the Arbitrator acknowledged that the CT scans and the MRI identified a subdural hematoma and subarachnoid hemorrhage.

2. The test in the Schedule does not require the adjudicator to consider the prognostic value of the GCS scores.

3. In M.M. (minor) and Guarantee Company of North America, (FSCO A10-000338, September 19, 2012), Arbitrator Killoran rejected the argument that a GCS score of 9 or less must result solely from the insured person’s brain impairment.

4. Delegate Evans, in Young, rejected the adding of the modifiers “valid and reliable” and “direct and exclusive” to the definition. These extra provisos serve as additional barriers beyond those set by the statutory definition.

5. To achieve the legislative intent of consumer protection, a large and liberal construction is required.

6. The determination of catastrophic impairment does not, by itself, result in any award of benefits. The Respondent must still demonstrate that he meets the further, specific requirements of each benefit claimed.

7. Contrary to the “bright line rule” enunciated in Liu, the Appellant submits that multiple other factors should be considered when determining whether a GCS score is valid. The consequent legal disputes would delay treatment for seriously injured individuals dependent on a catastrophic impairment designation.

8. The Respondent should not be penalized because the severity of his injuries required medication to control his deteriorating medical condition. The Respondent cites Arbitrator Kominar in Tournay and Dominion of Canada General Insurance Co., (FSCO A05-000507, July 20, 2006) that “[s]urely a reasonable and balanced interpretation of the law does not contemplate that someone in Ms. Tournay's position should be denied a catastrophic impairment designation because she was so seriously injured in an accident that she required emergency intubation to preserve her life.”

9. The case law establishes that what is a reasonable time for administering the GCS test must be determined in the particular circumstances of each case. Drs. Becker and Berry agreed that it was reasonable to continue to track the Respondent’s GCS scores.

The Respondent submits that to exclude the early GCS scores when he was intubated and sedated, and then say that one cannot look at the later scores, would be an error of law essentially eliminating a category of catastrophic impairment. Accordingly, the Respondent asks that this appeal be dismissed with costs payable by the Appellant.

V. ANALYSIS

In Tournay, Arbitrator Kominar held that notwithstanding the insured’s GCS score of 3 was taken while the insured was intubated and medically paralyzed, in the particular circumstance of the case she still met the subparagraph 2(1.1)(e)(i) definition of catastrophic impairment.

In Holland v. Pilot Insurance Co., 2004 CANLII 13787 (ON SC), Keenan J. ruled that a GCS score of 4 recorded while Mr. Holland was apparently impaired by alcohol was not invalid as the Schedule did not contain any limitations restricting the use of the GCS. Arbitrator Allen in Young and Liberty Mutual Insurance Company, (FSCO A02-000695, November 14, 2003),⁴ rejected the argument that the confounding factors of the insured being intubated and medicated with paralyzing drugs invalidated all of the GCS scores of 9 or less.

This appeal, however, does not address the Arbitrator’s finding that the Respondent’s earlier GCS scores of 3 while intubated and medically paralyzed were notional, as all three domains of the GCS (eye opening, motor response and verbal response) were untestable. The Arbitrator held that a score where the level of consciousness is untestable could not satisfy the catastrophic impairment test. This appeal only addresses the Arbitrator’s finding regarding the August 9, 2009 GCS score of 9.

The case law has established the following general precepts:

1. Subparagraph 2(1.2)(e)(i) of the Schedule is a legal definition to be met by a claimant, not a medical definition. The trial judge fell into error in equating the statutory test to a medical one (the Court of Appeal in Liu, paragraphs 27 and 29, addressing similar statutory wording in subsection 5(1) of O. Reg. 461/96).

2. Any notion of catastrophic injury, other than the specific meaning ascribed to that term by the legislation, must be discarded when considering whether a claimant meets the statutory test (the Court of Appeal in Liu, paragraph 30).

The definition of catastrophic impairment in the Schedule is a creature of the legislature, adopted 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 (Keenan J. in Holland, paragraph 24, rejecting Dr. Becker’s opinion evidence that the GCS scores in that case might not be directly related to the accident).

3. The definition is clear and unambiguous (Arbitrator Allen, in Young, page 24). It is not necessary to read in the terms “valid and reliable” as adjectives to GCS scores. The definition already requires the test to be administered by a person trained for it. Reading in such terms would validate the rejected position of ignoring a score if it was affected in any possible way by possible confounding factors (Delegate Evans in Young, page 30).

Presumably, such low scores already reflect serious trauma, so additional provisos such as “direct and exclusive” serve as additional barriers beyond those set by the definition (Delegate Evans in Young, page 10).

Inserting qualifying language into the definition such as “ongoing,” “durable” or “significant” before the words “brain impairment” is not in keeping with Liu and Young (Arbitrator Killoran, in M.M. at page 18).

4. The statutory scheme creates a “bright line rule” that is relatively easy to apply. This enhances the ability of those looking to the definition to know what injuries will and will not be considered catastrophic. The ease with which the rule can be applied adds an element of predictability that will facilitate the settlement of claims (the Court of Appeal in Liu, paragraph 30).

5. Provided that there is a brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident (the Court of Appeal in Liu, paragraph 27).

6. The fact that there may have been other higher scores also within a reasonable time after the accident is irrelevant (the Court of Appeal in Liu, paragraph 28).

7. It does not matter that the head injury was described as “moderate to severe” or “moderately severe” (the Court of Appeal in Liu, paragraph 31). 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 (Delegate Evans in Young, page 10). The statutory definition requires a brain impairment, not a brain injury (Arbitrator Killoran, in M.M. at page 20, agreeing with the insured’s position at page 8 of her decision).

8. The definition does not contain a temporal requirement for an insured to maintain a GCS score of 9 or less (Arbitrator Allen in Young, at paragraph 9). A time requirement is not established for the duration of the GCS score. Transient GCS scores are not excluded. Transience cannot be read into the definition to deny the catastrophic designation (Arbitrator Killoran in M.M. at page 15).

9. “The drafters clearly intended the definition of ‘catastrophic impairment’ to be inclusive rather than restrictive” (Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735 (S.C.), cited and expressly adopted by the Ontario Court of Appeal in Kusnierz v. Economical Mutual Insurance Company 2011 ONCA 823, [2011] O.J. No. 5908, at paragraph 25).

One of the main objectives of insurance law, specifically in the field of automobile insurance, is consumer protection (Smith v. Co-operators General Insurance Co. 2002 SCC 30, [2002] 2 S.C.R. 129, paragraph 11).

Insurance coverage provisions should be construed broadly and exclusion clauses narrowly (the Supreme Court in Canadian National Railway v. Royal and Sun Alliance Insurance Co. of Canada 2008 SCC 66, [2008] S.C.J. No. 67, cited in M.M. at page 17).

The Schedule should receive a large and liberal construction and interpretation as will best attain the objects of the legislation (M.M. at page 16).

“… if there is doubt in the legislation establishing and governing the cover, and there are two possible interpretations of any aspect of the cover, the one more favourable to the insured should govern” (July v. Neal 1986 CanLII 149 (ON CA), cited by Keenan J. in Holland, paragraph 27).

10. There is no special “Schedule” related interpretation of GCS scores distinct from the normal daily use that medical professionals trained in their administration make of them. If a GCS score was medically proper, the GCS score that was recorded is perfectly valid (Arbitrator Kominar in Tournay, page 24, rejecting Dr. Becker’s evidence at page 15 that there is a radical difference between GCS scores administered for medical purposes and GCS scores that are later reviewed for the purpose of determining catastrophic impairment under the Schedule).

11. The Legislature could not have intended that the most seriously injured might not have the enhanced accident benefits available to them soon after the accident because their GCS scores were confounded by the severity of their injury (Arbitrator Allen in Young, page 25).

12. It does not matter that there is evidence that the insured person was subsequently capable of managing his property, clothing, hygiene, shelter, safety and taking trips abroad (the Court of Appeal in Liu, paragraph 31).

13. Predictive analysis is not called for in the definition (Delegate Evans in Young, page 25).

14. A brain impairment need not be the only or sole cause of a GCS score of nine or less, with no contributing factors. Importing such language leads to an incorrect conclusion in light of the statutory intention and the plain reading of the legislation (Arbitrator Killoran in M.M. at pages 16 and 18).

A causal connection between events is established in law if either the “but for” or the material contribution test is met. That is, if the impaired consciousness measured by the GCS score would not have occurred but for the brain impairment, then causation is established. If that cannot be determined, then if the brain impairment materially contributed to the GCS score, causation is also established.

Arbitrator Killoran in M.M. at page 20, citing Athey v. Leonati 1996 CanLII 183 (SCC), [1996] S.C.J. 102 (S.C.C.), Monks v. ING Insurance Co. of Canada 2008 ONCA 269, [2008] O.J. 1371, and Clements v. Clements, 2012 SCC 32. Clements stated, at paragraph 49, “the cases consistently hold that scientific precision is not necessary to a conclusion that ‘but for’ causation is established on a balance of probabilities.”

15. Simply meeting the statutory definition does not automatically mean entitlement. It still remains for the insured person to prove his or her claim (the Court of Appeal in Liu, paragraph 33, and the Divisional Court in Young, paragraph 6).

16. The issue of a “reasonable period of time after the accident” requires a case-by-case analysis (the Divisional Court in Young, paragraph 6). The reasonable period varies depending on whether the scores can be said to have resulted from a brain impairment (Delegate Evans in Young, page 27).

If the drafters of the Schedule had intended a specific time limit be included, then a time limit would have been prescribed as in other provisions (Arbitrator Allen in Young, page 24, citing Driedger on the Construction of Statutes, Butterworths, 2nd edition, Toronto: 1983, page 94). In Young, the issue was not whether the GCS scores were taken too long after the accident, but whether they were taken too soon. Delegate Evans held that the matter would be different if the statutory test referenced a test taken “after” a reasonable period of time.

17. The question is not how early or how late the GCS test 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 (Arbitrator Miller in Mallat and Personal Insurance Company of Canada, FSCO A10-000179, December 16, 2011, page 11).

18. Subparagraph 2(1)(e)(ii) (subsection 2(1.2)(e)(ii) in the Schedule in question) defines catastrophic impairment as Glasgow Outcome Scale scores of 2 (vegetative) or 3 (severe disability) performed “more than six months after the accident.” By leaving the time requirement open under the prior subsection, the drafters have taken into account the varied medical pictures that might exist with persons who have sustained injuries less severe than those contemplated by subparagraph 2(1)(e)(ii) (Delegate Evans in Young, page 25).

19. The definitions of catastrophic impairment are disjunctive. Fitting under any one will qualify an insured person for the designation. It is irrelevant in determining whether the test in subparagraph 2(1.1)(e)(i) is met to look at whether the insured might qualify at some point under another section (Arbitrator Kominar in Tournay, page 18).

20. Expert evidence, even though undeniably from a well-experienced and able source, cannot act as a substitute for the finding which the tribunal has to make on all the evidence (the Divisional Court in Young, paragraph 6).

21. The arbitrator’s decision makes findings supported by evidence and accepts or rejects evidence for reasons which are grounded in the statutory regime and the circumstance of the case (the Divisional Court in Young, paragraph 6).

22. If the use of the Glasgow Coma Scale in subparagraph 2(1.1)(e)(i) is problematic, as a party’s witness suggests, the proper recourse is to the Legislature and the Lieutenant-Governor-in-Council with fully-documented concerns (the Divisional Court in Young, paragraph 7).

Dr. Berry confirmed, at page 106 of the transcript, his opinion that the Respondent had sustained a mild to moderate brain injury. Against the above case law, Dr. Berry submitted in examination-in-chief, at page 50, “my point is that one can’t rely so heavily on a Glasgow Coma Scale rating. One has to look at the larger picture.” At page 94, in cross-examination, he opines that the GCS number “is not the holy grail.” Earlier, in examination-in-chief at page 80, Dr. Berry provides his view as to what the proper statutory test should be:

A. ... So, to focus on the brain impairment at least materially contributing to the underlying brain injury, hanging that on a Glasgow Coma Scale, it does not make neurologic sense. I mean, I have taken a special interest in how doctors reason. I have written on this.

I have lectured on how does a doctor make a diagnosis? What is the difference between science and medicine? What are the ... what I call the seven deviant medical experts, how do they think? I mean I have written on this. I have lectured to the University of Windsor, the Osgoode Hall, at Queens … at Queens, the paper was published by the American Bar Association.

And I have never encountered this unusual reasoning, where all Dr. Becker seems to … and you can correct me if I am wrong, but all Dr. Becker seems to be interested in is the Glasgow Coma Scale. I understand that he is not interested in any other factors or a differential diagnosis during this …

Q. That, indeed, was his evidence yesterday, that he didn’t care about the differential diagnosis in this case.

A. And this problematic phase of four to five days, whereas every doctor would be concerned about this who has had experience with brain injury and post-operative recovery and complications and so forth.

So the thinking seems to be, “Identify the Glasgow Coma Scale … because that number is important, in a patient who has been in an accident”. And then, “So, I am only interested in those two factors. That is all I need to know. I don’t care about the MRI scan, or the oxygen levels, or the pH, or the possibility of embolism, or the complications of or contributions of medicine or so forth. I don’t care about any of this. If the Glasgow Coma Scale is 9 or below in a person who suffered an accident, therefore that triggers the conclusion that he has suffered a catastrophic injury”. And that is it. It is an extraordinary mode of reasoning that I, must admit, never become …

Q. Perhaps, to give Dr. Becker the benefit of the doubt, the legislation suggests if there is a reading of 9 or less within a reasonable time.

A. Yes, I understand that. [emphasis added]

Dr. Berry testified, at page 113, “when I use [the term] brain impairment in this patient, I … or brain injury, I refer to the permanent component of that.” Dr. Berry, at page 188 of his transcript, states that one should look at “purely brain” injury. At page 84, he testified that 56 hours after an accident the GCS scores are:

Well, they are contaminated, you see. The Glasgow Coma Scale, at that point, is contaminated by all these 10 or 11 … 10 factors that are there after the prolonged anaesthesia and surgery. So, to accept that as a valid indicator is not medical reasoning. I wouldn’t think the law or the legislation ... I mean these statements would have been … would not be bound to follow by how neurologists and neurosurgeons and people working intensive care units think.

Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, held that “questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” Following that decision, Housen v. Nikolaisen, 2002 SCC 33, held that “[q]uestions of mixed fact and law involve applying a legal standard to a set of facts … On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts.”

Concerning the correct legal test, the legislation does not, as put to Dr. Berry by the Appellant,

“suggest” that the test is a GCS score of 9 or less within a reasonable time following the accident. As set out in the case law, that is the statutory test, together with the requirements that the GCS score result from brain impairment in respect of an accident according to a test administered by a person trained for that purpose.

Nor is the test, as posed by Dr. Berry at page 30 of his transcript, whether a medical student looking at the emergency CT scan, would expect the Respondent’s GCS level of consciousness to be 3. Dr. Berry opined that if the student said yes, the student would fail. The question before me is not whether the Arbitrator is competent to practise medicine as a neurologist. The question is whether the Arbitrator erred in law in applying the statutory test to the facts of this case.

The Arbitrator accepted the opinion evidence of Drs. Berry and Becker that Mr. Hodges suffered a brain impairment as a result of the accident. He found that the paramedics, nurses and a trainee doctor who administered the test were trained for that purpose, the parties not arguing that the people who administered the GCS tests after the accident were not trained for that purpose.

This leaves two legal, not medical, questions for this appeal. Did the GCS score of 9 on August 9, 2009 result from a brain impairment in respect of the accident? Was the GCS test administered within a reasonable time after the accident?

Rule 4.1 of the Rules of Civil Procedure confirms the common law that opinion evidence is limited to only those matters that are within the expert’s area of expertise. It is outside a medical expert’s area of expertise to opine that subparagraph 2(1.2)(e)(i) should, in any event contrary to the specific meaning ascribed by the legislature and a “bright line rule” that is relatively easy to apply, be read with the additions, as highlighted, that catastrophic impairment is:

(e) subject to subsection (1.4), brain injury or brain damage that leads to permanent, serious brain impairment that, in respect of an accident, in the opinion of medical experts, solely, exclusively and purely, without any confounding factors, 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 no more than 24 hours after the accident by a person trained for that purpose that, in the opinion of medical experts, is reflective of and validly and reliably prognosticates permanent catastrophic brain injury as confirmed by better prognostic tools such as CT scans and MRIs, and is not disqualified by any Glasgow Coma Scale score of 10 or more,

Medical evidence within the expert’s area of expertise is of assistance as part of the adjudicator’s fact finding process regarding the application of the actual statutory test, specifically in this case, whether a brain impairment (as “impairment” is defined in the Schedule) in respect of the accident resulted, according to the legal (not a medical) test, in a GCS score of 9 or less.

In oral submissions, the Appellant initially argued that there were a few spots where Dr. Berry stated that when there was a GCS score of 9 or less, the brain injury was not a contributing factor. On reflection, the Appellant conceded that Dr. Berry did not say that the brain injury was not a contributing factor to the GCS score of 9 or that the August 9, 2009 GCS score was not caused by the brain injury. Rather, the brain injury and the brain impairment were one and the same and neither could be eliminated as a contributing factor.

However, the Appellant argued that the brain impairment was mild or moderate and would not correlate with a GCS of 9 or less. In Dr. Berry’s retrospective analysis, the blood clot was improving, there were better diagnostic tests and the dip in the GCS score was explained by other factors and “not necessarily the brain injury.”

As stated in Liu, the test is not the designation given by medical experts as to the severity of the brain impairment. At page 50 of his transcript, Dr. Berry testified that the Respondent had a known brain injury. He had a demonstrated blood clot. That blood clot could expand. At page 79, Dr. Berry stated that the Respondent “certainly has a permanent brain injury.”

Dr. Becker, in his March 12, 2012 report (agreed to be part of the appeal record), stated that “Dr. Berry unfortunately refers [in his reports] to brain injury and not brain impairment. He even uses the term, ‘catastrophic brain injury.’ It is clear that the SABS refers to brain impairment and not brain injury in describing the Glasgow Coma Score classification under the (e)(i) criterion. The SABS is silent with respect to the issue of brain injury at all under the (e)(i) criterion.”

In his oral evidence, Dr. Berry testified at page 106 that GCS scores indicate altered consciousness, that any recording less than 15 is considered altered. Notwithstanding his clarification at page 113 that when he spoke of brain impairment he meant permanent brain impairment, Dr. Berry testified at page 143 that the Respondent’s “brain impairment” was “the underlying problem” affecting the level of consciousness measured by the GCS. He continued:

And everything else is added to it, but it is medically, scientifically, neurologically incorrect to say that all of this is … this increase in the ... or the decrease in the levels of awareness on the Glasgow Coma Scale is due to the brain damage. I mean that is incorrect scientifically and neurologically. [emphasis added]

At page 21 of his transcript, Dr. Becker was qualified to give opinion evidence on the issues of the GCS and catastrophic assessments. At page 63, the Appellant did not take issue with Dr. Becker’s qualifications. At page 42, Dr. Becker gave the following evidence:

Q. Is it a reasonable conclusion to draw that the brain impairment contributed to the decreased Glasgow Coma scale scores in this case?

A. Yes.

At page 56 of his transcript, Dr. Becker testified that he would go further. He agreed that the brain injury resulted in brain impairment. The “GCS is a measure of brain impairment.” It measures three aspects of brain function (noted by the Arbitrator as eye opening, motor response and verbal response). The brain impairment causes a reduction in the GCS score. Dr. Becker continued, at page 61, that any GCS score lower than 15 is due to brain impairment. Here, the decreased level of consciousness, the GCS score, “was due to the underlying brain injury that caused it.”

Notwithstanding a sometimes, seemingly seamless, flow between “brain injury” and “brain impairment” in the expert evidence, what is pertinent in this case is not brain injury, but brain impairment. “Impairment” is defined in subsection 2(1) of the Schedule as “a loss or abnormality of a psychological, physiological or anatomical structure or function.” There is no dispute that the Respondent, on August 9, 2009, had a loss or abnormality of function in consciousness, as manifested in a loss or abnormality in eye opening, motor response and/or verbal response resulting in a GCS score of 9. There is no dispute regarding the underlying relationship of these losses or abnormalities to the structure and/or function of the Respondent’s brain. However, to clarify, a loss or abnormality of brain structure is not the exclusive pre-requisite to meeting the statutory definition. A loss or abnormality of brain function is equally sufficient. Accordingly, a loss or abnormality of brain function, here in the form of a loss or abnormality of consciousness, by itself, meets the test of “brain impairment.”

Whether on a “but for” or on a “material contribution” basis, I am persuaded that there was an evidential basis for a finding, satisfying the legal test in subparagraph 2(1.2)(e)(i), that the Respondent’s conceded brain impairment, conceded to be in respect of the August 5, 2009 accident, resulted in an August 9, 2009 GCS score of 9 or less, that is not disputed to have been conducted by persons trained for that purpose. Accordingly, this ground of appeal is dismissed.

The second question on appeal is whether that GCS score was taken within a reasonable period after the accident. I agree with Delegate Evans that whether the GCS score is taken within a reasonable time period depends on whether the scores can be said to have resulted from a brain impairment. This requires a case-by-case analysis. In the present case, that was answered above in the affirmative.

However, I further note, at page 49 of Dr. Becker’s examination-in-chief, the following:

Q. So his Glasgow Coma Scale was continuing to fluctuate even at that time [August 8th to discharge from the initial hospital]?

A. Yes. My point is that it was continuing to fluctuate and he was still demonstrating brain impairment throughout his whole stay at the London Health Sciences Centre.

Q. And I take it that it is reasonable to record the Glasgow Coma Scale as long as the person is being followed for that reason, treatment of brain injury and brain impairments?

A. Yes. Typically by the time it reaches 15 and it is consistently at 15, you don’t see it recorded anymore.

In answer to a follow-up question posed by the Arbitrator, Dr. Becker testified, at page 190, that the monitoring would continue as long as the person is showing a fluctuating consciousness. Dr. Becker stated that in this case, when the Respondent left hospital he still had significant evidence of brain injury, that is, he had a brain impairment when he left hospital. However, at page 45 of his transcript, Dr. Becker testified, consistent with his March 7, 2012 statement, at page 6, that the reasonableness of the time was a legal issue.

Dr. Berry’s evidence, at page 82 of his transcript, was:

Q. … What, in your opinion, Dr. Berry, is a reasonable … given this fact situation, given the injuries that were sustained by … the documented injuries sustained by Mr. Hodges, what would be a reasonable time after the accident to document the Glasgow Coma Scale in regards to the brain impairment?

A. Well, I think those early … obviously, one would document them beyond that, but the early Glasgow Coma Scales in that, I think, one hour and four minutes before intubation, are all reasonable indicators.

Q. Right.

A. And that is a reasonable time for … as to give a prognostic value, a predictive value. Now, it that ... he hadn’t been complicated by the lung and the chest injuries and so forth, they would have gone on recording those Glasgow Coma Scales and they would have improved. Because that is what the MRI scan shows and that is what the recovery shows after that phase.

But to say that somehow the early … the initial brain injury, what was at the 11, 12, 13 Glasgow Coma Scale level is now interpretable to be 9 or below because of brain injury. Because there is nothing else going on and we don’t have to consider it.

It does not make medical or neurologic sense. I don’t know of anyone else who would reason that way. But I understand the coercions, is that you have to meet the legal definition. And I’ve always regarded the law as wise, empirically based and tethered, as I am guided by science and I recognize the difficulty. [emphasis added]

As set out above, the legal test regarding “within a reasonable period of time after the accident” is not qualified by the words “to give a prognostic value” or to give a predictive value as to the level of catastrophic brain injury. Nor does “reasonable time” mean “optimum time.”

As also noted above, the Schedule defines “impairment” as a loss or abnormality of a psychological, physiological or anatomical structure or function. The Arbitrator found that the August 6, 2009 CT scan identified that the Respondent had bleeding in his head. It can hardly be questioned that bleeding around the brain, as confirmed in this case by Dr. Berry, is an abnormality of a physiological or anatomical structure or function. The Arbitrator found that the GCS score was being used as a simple procedure to determine whether that area of bleeding – part of the Respondent’s brain impairment in respect of the accident − had shrunk or grown.

Accordingly, there was an evidential basis for a finding, satisfying the legal test in subparagraph 2(1.2)(e)(i) of the Schedule, that the Respondent’s August 9, 2009 GCS score of 9 or less was taken within a reasonable period of time after the accident. Therefore, the Arbitrator’s May 22, 2012 decision is confirmed and this appeal is dismissed.

VI. EXPENSES

If the parties are unable to agree on the legal expenses of this appeal, pursuant to Rule 79 of the Dispute Resolution Practice Code (Fourth Edition, Updated – August 2011), an expense hearing shall be requested within thirty days of the date of this decision, accompanied by (1) a Bill of Costs describing the expenses claimed, the services received and the costs, and (2) submissions on entitlement to and/or the quantum of legal expenses, as are in dispute.

February 22, 2013

Lawrence Blackman Director’s Delegate

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Application for leave to appeal to the Court of Appeal denied with costs, Doc. CA M3365. Application for leave to appeal to the Supreme Court of Canada dismissed with costs, Liberty Mutual Insurance Co. v. Young, [2006] S.C.C.A. No. 347.
3. 3Allstate Insurance Company of Canada and Tesfay, (FSCO P99-00023, June 21, 1999), Allstate Insurance Company of Canada and Al-Obaidi, (FSCO P99-00009, May 2, 2000), and Allstate Insurance Company of Canada and Torok, (FSCO P01-00021, May 29, 2001).
4. 4The decision was upheld on appeal by Delegate Evans, as set out above. Application for judicial review was dismissed. Application for leave to appeal to the Court of Appeal was dismissed with costs. Application for leave to appeal to the Supreme Court of Canada was dismissed with costs.