16-001305 v. Gore Mutual Insurance Company, 2017 CanLII 44026

16-001305 v Gore Mutual Insurance Company

Date: 2017-06-16 Tribunal File Number: 16-001305/AABS Case Name: 16-001305 v Gore Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant (by his litigation guardian D. M)

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

Adjudicator: Catherine Bickley Written submissions: William A. G. Simpson, Counsel for the Applicant Philippa Samworth, Counsel for the Respondent Heard: December 21, 2016

OVERVIEW

1On December 20, 2014, the applicant was seriously injured in an accident. He was twelve years old at the time. He was taken by ambulance from the accident scene to the local hospital, and then to London Health Science Centre (“LHSC”) where he remained until he was discharged on December 27, 2014. He returned to school three months later.

2On July 30, 2015, the applicant’s mother submitted an Application for Determination of Catastrophic Impairment (OCF-19) completed by Dr. Neil Merritt, who had been involved in the applicant’s care while the applicant was at LHSC and later as an outpatient. Dr. Merritt checked off Criteria 6, which echoes the language of s.3 (2)(d)(i) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Criteria 6 states that catastrophic impairment is:

6. brain impairment that, in respect of an accident, (i) results in a score of 9 or less on the Glasgow Coma Scale (“GCS”), according to a test administered within a reasonable period of time after the accident by a person trained for that purpose ...¹

3In October 2015, the respondent, Gore Mutual Insurance Company (“Gore”), determined that the applicant had not sustained a catastrophic impairment based on a paper review by neurologist Dr. Francis Farhadi. ² The applicant appeals that determination.

4An individual who is found to be catastrophically impaired as the result of an accident has access to a larger envelope of benefits if they establish that those benefits are reasonable and necessary.

5The parties submitted an Agreed Statement of Facts (“ASF”), a joint brief of documents and a joint brief of authorities. Gore also submitted a supplemental document brief, containing a report by Dr. Michael Hanna dated after the ASF and the applicant’s submissions. Each party made written submissions.

6Having reviewed all the material listed in paragraph 5, and for the reasons below, I find that the applicant has sustained a catastrophic impairment.

THE GLASGOW COMA SCALE

7In considering the evidence and arguments in this case, it is helpful to first review the nature of the GCS.

8The GCS was developed by Drs. Jennett and Teasdale and articulated in a 1981 paper.³ First responders and other medical personnel use the GCS to quickly assess and record an injured person’s level of consciousness.

9The GCS measures three elements, as follows:

• eye opening

• minimum score 1

• maximum score 4

• motor response

• minimum score 1

• maximum score 6

• verbal response

• minimum score 1

• maximum score 5

For each element, the minimum score indicates no response; the maximum score indicates no impairment. Scores between the minimum and maximum reflect varying degrees of impairment. The combination of scores from the three elements results in a total score between 3 and 15.

The GCS score is an important part of a determination whether an injured person is catastrophically impaired under s.3 (2)(d)(i) of the Schedule, which defines catastrophic impairment as:

Subject to subsection (4), brain impairment that results in (i) a score of 9 or less on the Glasgow Coma Scale … according to a test administered within a reasonable period of time after the accident by a person trained for that purpose.

MEDICAL RECORDS

10The parties agree that the medical records establish the following:

• The applicant complained of headaches when he arrived at the local hospital.⁴
• His injuries included pulmonary contusions, grade 2 splenic injury, multiple rib fractures and spinal micro fractures.⁵
• Following the accident, he also experienced concussion-like symptoms.⁶
• A CT scan of his head was negative.⁷

11The ambulance call report records two GCS scores of 15.⁸ Subsequent GCS scores, as well as medical procedures on December 20, 2014, are set out in the ASF,⁹ as follows:

a) December 20th - [local hospital] - 1458 hrs - GCS 13 b) December 20th - [local hospital] - 1505 hrs - GCS 15 c) December 20th - [local hospital] - 1535 hrs - GCS 15 d) December 20th - [local hospital] - 1605 hrs - GCS 15 e) December 20th - [local hospital] - 1701 hrs - intubated, administered 1OO mg Fentanyl and 50 mg Ketamine; placed on Morphine drip f) December 20th - [local hospital] - 1752 hrs - transferred to London Health Sciences Centre - Victoria Campus g) December 20th - 1858 hrs - arrival at London Health Sciences Centre – Victoria Campus h) December 20th - LHSC - 2100 hrs - GCS 7T i) December 21st - LHSC - 0000 hrs - GCS 7T j) December 21st - LHSC - 0200 hrs - GCS 8T k) December 21st - LHSC - 0500 hrs GCS 8T l) December 21st - LHSC - 0800 hrs - GCS 11 (m)December 21st - LHSC - 1400 hrs - GCS 11 m) December 21st - LHSC - 2000 hrs - GCS 8T n) December 22nd - LHSC - 0000 hrs - GCS 9T o) December 22nd - LHSC - 0400 hrs - GCS 9T p) December 22nd - LHSC - 0800 hrs - extubated q) December 22nd - LHSC - 0800 hrs - GCS 11 r) December 22nd - LHSC - 1900 hrs - GCS 15

12From 1900 hours on December 22, 2014 until the applicant’s discharge on December 27, 2014 his GCS score remained steady at 15.¹⁰

13Additional medical records in the joint book of documents are referred to below where relevant to the parties’ submissions and my analysis.

THE APPLICANT’S POSITION

14The applicant relies on the Ontario Court of Appeal’s interpretation of s.3 (2)(d)(i) in the Liu¹¹case:

Provided there is brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident. It is a legal definition to be met by a claimant and not a medical test.”

The applicant argues that the evidence in this case satisfies the requirements of s.3 (2)(d)(i) as articulated in Liu. He points to his seven GCS scores of 9 or less and the evidence that he sustained a concussion with amnesia, dizziness, photophobia and fatigue to support this position. He maintains that a concussion fits the definition of impairment in s.3 (1) of the Schedule¹².

15The applicant further submits that s.3 (2)(d)(i) does not contain qualifying phrases such as “while not intubated” or “while not under the sedating medications”. The section also does not contain any modifiers such as “valid”, “reliable”, “on-going”, “durable” or “significant”.¹³ He submits that such qualifiers or modifiers should not be read into the section. Instead, on a plain reading of the section and consistent with the Liu decision, a GCS score of 9 or less, in the presence of brain impairment that results from an accident, is enough to establish catastrophic impairment.

16The applicant submits that the following legal principles are well-established and must guide the interpretation of the Schedule. Insurance coverage provisions should be construed broadly and exclusion clauses narrowly. ¹⁴ When there are two possible interpretations of the scope of coverage, the one more favourable to the insured should govern.¹⁵

THE RESPONDENT’S POSITION

17Gore submits that there is no medical evidence that the applicant has sustained a brain injury or brain impairment as a result of the accident.

18It further argues that the applicant’s GCS scores that are lower than 9 are invalid because the scores were confounded by medication and the applicant’s intubation. In other words, if not for the medication and intubation, the scores would have been higher than 9. Gore also argues that the intubation was solely due to a drop in oxygen levels and unrelated to any brain injury or impairment. As well, errors in how the GCS scores were recorded render them invalid.

19In support of the above arguments, Gore relies primarily on the December 5, 2016 report of Dr. Hanna.

20Dr. Hanna analyzes the impact of the various medications which the applicant received. He states that there is a clear connection between the medication and the GCS scores.

21Dr. Hanna concludes that all the applicant’s GCS scores below 9 are invalid because the persons recording them did not have a good understanding of the GCS or how to calculate the GCS.¹⁶ In some instances, according to Dr. Hanna, the GCS scores should have been higher than recorded, in other instances, lower. Either way, he says, all the GCS scores are invalid. In particular, he focuses on the way the verbal scores were recorded while the applicant was intubated.

22Dr. Hanna takes the position that when a patient is intubated, the verbal response element of the GCS should be scored T rather than 1, indicating that the element is untestable. In the LHSC records, the verbal response score is sometimes listed as 1 and sometimes as T1. Dr. Hanna suggests that when the verbal response element is untestable, that element should be assigned the maximum score of 5. Doing so would have made all the applicant’s GCS scores 10 or above.

ANALYSIS AND DECISION

23I have kept in mind the principles set out in paragraph 16 regarding the proper approach to interpreting the Schedule when considering the parties’ submissions.

24Gore’s submissions were based primarily on Dr. Hanna’s report. I have a number of concerns with that report. First, in contrast to the report of Gore’s other expert, Dr. Farhadi, Dr. Hanna’s report has the tone of submissions from an advocate rather than the findings of an objective expert. For example, the report includes a detailed summary of caselaw which is clearly outside Dr. Hanna’s area of expertise. Second, the report was written after the ASF and after the applicant’s initial submissions were received by Gore and the Tribunal. Through this report, Gore attempts to undermine the ASF through criticism of LHCS’s recording of the applicant’s GCS scores, as discussed further below.¹⁷ Third, the report is inconsistent on significant points with both Dr. Farhadi’s report and the ASF.¹⁸ Fourth, Dr. Hanna makes a large leap in logic from minor discrepancies in GCS scoring to conclusions as to what the applicant’s GCS scores “should” have been. Without providing a rationale for doing so, he suggests changes to the scores that would bring them above 9. This is clearly speculative and, as noted above, reflects my concern that Dr. Hanna is acting more as an advocate than an independent expert. For these reasons, I give little weight to his report.

25I consider first whether the applicant sustained brain impairment as a result of the accident. I then consider whether the GCS scores were confounded by the medication or intubation. This consideration includes a determination on why the applicant was intubated and received related medication. Finally, I consider whether the applicant’s GCS scores of 9 or lower were invalid due to errors in scoring.

Did the applicant sustain brain impairment?

a) Did the applicant sustain a concussion as a result of the accident?

26I find that the applicant sustained a concussion as a result of the accident. I further conclude that a concussion meets the Schedule’s definition of brain impairment.

27Shortly after the accident, the applicant became somnolent, combative and had some amnesia.¹⁹ Other difficulties he experienced included increased fatigue, headaches, photophobia and dizziness with activity.²⁰

28The evidence indicates that Dr. Merritt, who was involved in the applicant’s treatment during his stay at LHSC as well as his follow-up treatment as an outpatient, considered the applicant to have sustained a concussion. Dr. Merritt repeatedly refers to “his concussion” or “the concussion” in the January 2015 outpatient report.²¹

29There is no suggestion in any of the evidence that the applicant’s concussion resulted from any cause other than the December 20, 2014 accident.

30Gore concedes, in the ASF, that the applicant experienced concussive-type symptoms following the accident. Gore’s first expert, Dr. Farhadi, acknowledges that the applicant had “concussive-type symptoms with increased fatigues as well as headaches and photophobia” and that he experienced dizziness and “may have also sustained a concussion at the time of the subject accident”.²²

b) Does a concussion constitute brain impairment?

31I find that a concussion constitutes brain impairment.

32Section 3(1) of the Schedule defines impairment as “a loss or abnormality of a psychological, physiological or anatomical structure or function”.

33In my view, a concussion fits clearly within this definition. The applicant experienced dizziness, headaches and photophobia. He had amnesia shortly after the accident²³. He may have also had a brief period of vision loss ²⁴ and some blackouts²⁵. In short, his brain was not functioning normally. The medical advice given to the applicant included a directive to withdraw from activity until his symptoms improved.

34The CT scan taken at LHSC found “no acute abnormality or post-traumatic changes.” Regardless of the inability to “see” a concussion on a CT scan, I find that the symptoms the applicant exhibited are evidence of brain impairment.

35Gore has commented that if the applicant had a concussion it was neither severe nor long lasting. That is not relevant. As stated by the Divisional Court in Hodges²⁶:

It is sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment to make that person’s GCS score relevant for the purposes of the definition in the SABS. [emphasis in original]

Were the applicant’s GCS scores of 9 or less confounded by medication and/or intubation?

36On the day of the accident and over the next two days, the applicant’s GCS scores ranged from 7T to 15; seven scores were 9 or less. Gore submits that these scores are unreliable because they were confounded by medication and/or intubation. I disagree for the following reasons.

37Dr. Hanna says that the references in the medical records to the applicant being intubated due to somnolence and combativeness were incorrect. Dr. Hanna interprets a note in the local emergency room record as indicating that the applicant was intubated solely due to a lack of oxygen. I do not accept that interpretation. It is clear from reading the document that lack of oxygen was a factor in the intubation. It is not at all clear that this was the only reason. There is a note on the record prior to intubation that he “wants to sleep”. Further, other documents record that the applicant was intubated after he became somnolent and combative.²⁷ I prefer reports by those who actually treated the applicant to Dr. Hanna’s interpretation of a record that is unclear and open to more than one interpretation. The applicant was in distress and was given the treatment required to deal with that distress.

38The issue of why the applicant was intubated is another example of inconsistency in Gore’s two expert reports. While Dr. Hanna asserts that intubation was related only to lack of oxygen, Dr. Farhadi accepts the reports of combativeness and amnesia, and concludes that the applicant “was essentially sedated and intubated for combativeness”²⁸.

39Having reviewed Dr. Hanna’s report, I am not convinced that there is as clear a connection between medication and GCS scores as he asserts. With respect to both the intubation and medication, Dr. Hanna seems to ignore the fact that during the time the applicant was intubated and medicated, two GCS scores above 9 were recorded. Both were 11.

40The authorities jointly submitted by the parties include decisions from FSCO and the Ontario courts considering situations in which GCS scores were potentially affected by confounding factors: alcohol and marijuana,²⁹ medication,³⁰ medication and intubation,³¹ hypotension or hypoxemia.³² Notably, in each of these cases, the applicant was found to meet the criteria for catastrophic impairment notwithstanding arguments from the insurers that confounding factors had rendered the GCS scores invalid. Gore has provided no persuasive reason to depart from this line of case law.

41I agree with the applicant that there are no modifiers in s.3 (2)(d)(i) and that none should be read in. Following the direction of the Supreme Court of Canada and Ontario Court of Appeal, that section must be interpreted in an inclusive and expansive manner. To the extent that there is the possibility of more than one interpretation, the section must be interpreted in favour of the insured. Medication and intubation are frequent in the treatment of people who have been very seriously injured in automobile accidents and are not appropriate reasons to deny a determination of catastrophic impairment where the criteria in in s.3 (2)(d)(i) have been met.

Were the GCS scores invalid due to errors in scoring?

42In support of its position that the GCS scores are not valid, Gore relies on the December 5, 2016 report of Dr. Michael Hanna. Dr. Hanna’s report attacks the use of GCS scores in general as well as the way in which the GCS scores were recorded in the applicant’s case. He summarizes several journal articles which critique the GCS and concludes that the “GCS was designed for a different purpose than it is being used for.” ³³

43There are minor inconsistencies in the recording of the applicant’s GCS scores during his time at LHSC, such as the verbal response being sometimes recorded as 1 and sometimes at T1. As well, the two scores of 11 during the relevant time do not have a T attached despite having been recorded during a time when the applicant was intubated. These minor inconsistencies, however, do not, in my view, affect the validity of the scores.

44Further, some of Dr. Hanna’s “corrections” would result in lower GCS scores than listed in the ASF. He argues, however, that because, for example, a 1 was recorded when T should have been recorded, the scores are all invalid.

45I reject Dr. Hanna’s suggestion that the verbal element should be scored as 5 resulting in all the applicant’s GCS scores being above 9. He offers no basis for inserting that score. In sum, Dr. Hanna’s report attempts to substitute his own perspective of how GCS scoring should be done for the actual scoring that was done by individuals who Gore has agreed were “trained for that purpose”.

46With respect to Gore’s argument that the GCS scores are invalid due to errors in scoring, the applicant submits that this argument is contrary to Gore’s acknowledgement in the ASF that the tests were administered within a reasonable time and by persons trained for that purpose. I agree.

47Dr. Hanna explicitly says “they [the GCS tests] were not administered by someone who is properly trained for that purpose.³⁴

48In its submissions, Gore argues:

… the test must be administered within a reasonable period of time after the accident by a person trained for that purpose. In this case, there were errors in the recording and summation of the three components of the GCS … the GCS scores are therefore invalid for this legal test and cannot be relied on by the Claimant before this Tribunal for a determination as to whether the Claimant sustained a catastrophic impairment as a result of this accident.³⁵

49This argument and Dr. Hanna’s statement set out in paragraph 46, above, are in direct contradiction to paragraph 21 of the ASF:

The parties agree that the GCS scores reflected in the records submitted in the Joint Document Brief were as a result of tests administered by persons trained for that purpose and that those tests were within a reasonable time after the accident.

50Having agreed that the tests were administered by persons trained for that purpose, Gore cannot, through Dr. Hanna’s report, resile from that agreement.

51Dr. Hanna’s general criticisms of the GCS do not assist in the determination of whether the applicant has sustained a catastrophic impairment. Simply put, the GCS was chosen by the legislature to act as a “bright line”³⁶ to determine which insured persons may access an expanded envelope of benefits.

52Any shortcomings in the GCS from a medical perspective are simply irrelevant to the interpretation and application of s.3 (2)(d)(i). As noted by the Court of Appeal in Liu, whether an individual meets the criteria is a legal test, not a medical one.

CONCLUSION

53I find that the applicant sustained brain impairment as a result of the December 20, 2014 accident, that impaired brain function was one factor leading to the medical decision to intubate and medicate the child and that he had seven valid GCS scores of 9 or lower following the accident. Thus he has satisfied the criteria set out in s.3(2)(d)(i) of the Schedule.

ORDER

54For all of the above reasons, I find that the applicant has sustained a catastrophic impairment as a result of the December 20, 2014 accident.

Released: June 16, 2017

Catherine Bickley, Adjudicator

Footnotes

1. 1Part (ii) of Criteria 6 is not in issue in this case.
2. 2Explanation of Benefits (OCF-9), October 30, 2015. Report of Dr. Farhadi, October 16, 2015 (“Farhadi report”).
3. 3Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981.
4. 4ASF, para 9
5. 5ASF, para 13
6. 6ASF, para 13
7. 7ASF, para 12: The CT scan report stated, “No acute abnormality or post-traumatic changes.”
8. 8ASF, para 8
9. 9ASF, para 10
10. 10ASF, para 11
11. 11Liu v. 1226071 Ontario Inc. 2009 ONCA 571, 97 O.R. (3d) 95, at para 27
12. 12Section 3(1) of the Schedule defines impairment as “a loss or abnormality of a psychological, physiological or anatomical structure or function”.
13. 13Applicant’s submissions, para 42
14. 14Progressive Homes Ltd. V. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 S.C.R. 245; Canadian National Railway v. Royal and Sun Alliance Insurance Co. of Canada, 2008 SCC 66, [2008] 3 S.C.R. 453;
15. 15July v. Neal (1986) 57 O.R. (2d) 129, 1986 CanLii 149 (ON CA)
16. 16Dr. M. Hanna, Dynamic Functional Solutions Inc., Catastrophic Impairment Paper Review, December 5, 2016 (“Hanna report”)
17. 17See paragraphs 42 through 49 below.
18. 18See, for example, paragraphs 37 and 38 below, discussing the respondent’s two experts’ differing views on the reason(s) why the applicant required intubation.
19. 19LHSC discharge document
20. 20January 12, 2015 Outpatient Report
21. 21January 12, 2015 Outpatient Report
22. 22Farhadi report, page 4
23. 23LHSC discharge document
24. 24Helena Wood, Rehabilitation Counselling Associates Social Work Assessment Report, March 6, 2015, page 4
25. 25Hanna report, page 8 quoting from an April 12, 2016 Occupational Therapy report.
26. 26Hodges v. Security National Insurance Company [2014], 2014 ONSC 3627 (Ont.Div.Ct.), para 18
27. 27LHSC Discharge Documents, page 12; OCF-19.
28. 28Farhadi report, page 2
29. 29Holland v. Pilot Insurance Company, 2004 Can Lii 13787 (Ont. S.C.J.)
30. 30Mallat v. Personal Insurance Company, FSCO A10-000179
31. 31Security National Insurance v. Hodges, 2014 ONSC 3627 and Tournay v. Dominion of Canada General Insurance Company, FSCO A05-000507
32. 32M.M. v. Guarantee Company of North America, FSCO -10-000338
33. 33Hanna Report, page 34
34. 34Hanna Report, page 51
35. 35Respondent’s submissions, para 52
36. 36Liu v. 1226071 Ontario Inc. 2009 ONCA 571, 97 O.R.. (3d) 95