Tribunal File Number: 16-003891/AABS
Case Name: 16-003891 v Primmum Insurance Company
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
E. W.
Applicant
and
Primmum Insurance Company
Respondent
DECISION
ADJUDICATOR: D. Gregory Flude
APPEARANCES:
For the Applicant: E. W. Laya Witty, Counsel
For the Respondent: Peggy Moore, Claims Representative Jason Anand and Ilya Kirtsman, Counsel
Court Reporter: Celine Tessier
HEARD: Newmarket: August 29, 2017
REASONS FOR DECISION AND ORDER
1The applicant was injured in a single vehicle accident on the night of May 3, 2015. He suffered multiple fractures to his spine, legs and face, including losing several teeth. The respondent has paid benefits to the applicant pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). According to the applicant’s counsel, he has exhausted the monetary limits of the medical benefits that were available to him and now seeks to be classified as catastrophically impaired, a classification that will entitle him to higher monetary limits and further benefits.
2The sole ground the applicant relies on is that he suffered brain impairment in the accident that resulted in him scoring 9 or less on an internationally recognized test of cognition known as the Glasgow Coma Scale (GCS). The respondent argues that the applicant’s lowered GCS score was unrelated to any brain impairment the applicant may have suffered in the accident. The score was taken in the recovery room as the applicant came round after surgery to repair the fractures in his legs.
ISSUE IN DISPUTE
3Is the applicant catastrophically impaired as a result of a brain impairment that resulted in a score of 9 or less on the Glasgow Coma Scale within a reasonable time after the accident?
RESULT
4The evidence establishes that the applicant was not showing signs of brain impairment when he arrived at the trauma unit of a major Toronto hospital by air ambulance. Thereafter, all of his treatment focussed on the physical injuries to his face and legs, including surgery to repair his fractured legs. His lowered GCS score is solely related to the effects of intubation and anaesthesia, and was not the result of brain impairment.
ANALYSIS
5In addition to presenting oral evidence from expert witnesses, the parties introduced copious documents. The respondent, for instance, introduced 1700 pages of documents in three binders. I entered all of the document binders as exhibits subject to identification. I advised the parties that if my attention was not directed to a specific document in evidence or submissions, I would not consider that document in my deliberations. Neither party objected to this approach.
6The applicant seeks a determination that he is catastrophically impaired as that term is defined in the Schedule. Catastrophic impairment is defined in s. 3(2) of the Schedule and s. 3(2)(d)(i) addresses the role of the GCS in defining it. A person is catastrophically impaired if they suffer brain impairment that results in a score of 9 or less on the Glasgow Coma Scale.1
7The wording of s. 3(2)(d)(i) sets out four criteria that must be satisfied for the applicant to succeed:
(i) He must have suffered brain impairment as a result of the accident;
(ii) The brain impairment must result in a score of 9 or less on the GCS;
(iii) The test must have been administered within a reasonable time after the accident; and
(iv) The person administering the test must be trained for that purpose.
Neither party argued the question of the timing of the test or the competence of the persons administering it from time to time throughout the applicant’s treatment.
8To resolve the dispute between the parties I must determine if the applicant suffered brain impairment as a result of the accident and did that impairment result in a score of 9 or less on the GCS.
Facts
9The applicant was involved in a single vehicle accident on the night of May 3, 2015 when he drove his car into a tree. He had been drinking and blood tests later showed an alcohol level almost three times the legal limit for driving. When paramedics arrived on the scene the applicant communicated with them but seemed somewhat confused. They applied a test to the applicant to determine his level of mental impairment, the GCS, and marked him as 13 out of a maximum score of 15. Throughout the next several hours while the applicant was extracted from the crashed car and ultimately transported by air ambulance to a major Toronto trauma centre the applicant’s GCS score never dipped below 13. On arrival at the trauma centre in Toronto, his score was 15.
10The applicant sustained major injuries in the crash, including injuries to his upper jaw with loss of teeth and two broken legs with multiple fractures and a comminuted fracture of the C2 vertebra. The trauma centre recognized that he needed immediate surgery to save his legs. In preparation for that surgery the applicant was intubated and sedated. Following the operation, the applicant was assessed in the recovery room and his first GCS was measured as 8T, the “T” indicating that one of the tests in the GCS, the voice response, could not be measured because he was intubated at the time. He scored 8 out of a possible 10 on the other 2 tests, movement and eye response. Thereafter the applicant recovered in the recovery room and in the ICU and his GCS scores remained above 9T.
The GCS
11The GCS is a clinical tool widely used by first responders and clinicians to assess the consciousness of patients. It measures three parameters: eye opening, motor response and verbal response. It assigns a score to each response ranging from 1, meaning completely unresponsive, to a maximum indicative of an unimpaired response. The maximum score for eye opening is 4; for motor response 6; and for voice response 5. The scores are combined and range from a maximum of 15 to a minimum of 3, the latter score reflecting a complete lack of responsiveness.
12The test was developed through the 1970s, but the full numerical scale was not published until 1981. The developers of the test, Jennett, B. and Teasdale, G., published a paper entitled Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 1981. Section 3 (2)(d)(i) of the Schedule incorporates the paper by reference. The section then goes on to define a catastrophic impairment as a score of 9 or less on the GCS. Given the wording of the section, it is clear that the GCS score is to be used as a proxy for more exhaustive tests to determine the extent of brain impairment to insure those injured persons in need of an intensive response are identified and treated early without concern for coverage limits.
13It is possible that an injured person may have injuries that inhibit the ability to test in all three parameters. Eyes may be swollen shut, for instance, negating the ability to rate the eye response. Clearly the swelling of the eyes is not a function of brain impairment so it would skew the results to assign a 1 to the inability to test in that area. Similarly, as in the current case, the injured person may have to be intubated to protect the airway. In such a case, there is no verbal response. The authors of the 1981 paper contemplated the utility of the test when faced with these challenges. The protocol in dealing with these situations is to assign no score to the unmeasurable parameter but to make a notation on the score to show that the test is based on two not three measurable parameters. In the current case, the applicant scored 8T because his airway had been intubated for the operation and he could not speak.
Brain Impairment v. Brain Injury
14It is important to note that the definition in s. 3(2)(d)(i) does not require proof of a brain injury. In the current case I heard evidence from Dr. Ali Ghouse who addressed the question of whether the applicant had suffered a concussion in the accident. Dr. Ghouse identified a number of symptoms that led him to believe that the applicant was suffering from post-concussion syndrome. The applicant suffered serious injuries to his face and Dr. Ghouse concluded that he also suffered concussion. I do not find Dr. Ghouse’s evidence relevant to the issue before me. Dr. Ghouse has addressed the question of whether the applicant suffered a brain injury with long term impact, not brain impairment as measured by the GCS in and around the time of the accident.
15The question of the need for a physical injury to the brain as opposed to brain impairment was discussed in M.M. v. Guarantee Company of North America, [2012] O.F.S.C.D. No. 123. In that case, a five-year old girl was knocked through a plate glass window. First responders noted a GCS of 9/15. They gave her oxygen and her GCS improved to 14/15. M.M. sought a determination that she had a catastrophic impairment based on her GCS score of 9. The insurer resisted arguing that her reduced score was attributable to factors unrelated to the brain such as hypoxemia and hemodynamic instability and there was scant evidence of a brain injury. In addressing that argument and finding that M.M. was catastrophically impaired, the arbitrator held, at paragraph 59, that the issue was brain impairment and that the accident led to massive loss of blood and low oxygen levels in the brain that impaired its function. A demonstrable physical injury to the brain is not a requirement when considering an application based on a low GCS score.
16I find this analysis persuasive. In P.L.F.R. v. Intact Insurance Company2 I followed a similar analysis. The applicant in that case was injured in an automobile accident. She was initially transported from the accident scene to a local hospital and then airlifted to a major Toronto trauma centre. At the local hospital she was intubated and given a range of sedative and other drugs. Throughout her treatment her GCS score continued to drop from a high of 13 in the ambulance, to 10 at the local hospital to as low as 2T before leaving the trauma room for the operating theatre. The insurance company argued that there was no evidence of a lasting brain injury and that her lowered GCS score was the result of intubation and sedation. Testifying on behalf of the applicant in that case, Dr. Harold Becker, who also testified on behalf of the applicant in this case, stated that the applicant’s lowered GCS score was the result of a combination of brain impairment from a subarachnoid haemorrhage and hypovolemia and that a sedated and intubated GCS score was still a valid score. I agreed and found the applicant to be catastrophically impaired.
Confounding Factors
17P.L.F.R. also addresses the question of confounding factors that inhibit the ability to record values for each of the GCS scores. The respondent argues that a GCS score of 9 or less where one or more of the three parameters cannot be measured is invalid. It points out that this was the position taken by Dr. Becker in Tournay v. Dominion of Canada General Insurance Co;3 a position directly at odds with the position Dr. Becker is taking in this case. The respondent fails to note that, in rejecting Dr. Becker’s position that a confounded GCS score is invalid, the arbitrator in Tournay identified the GCS as a clinical tool, not a legal tool, and that if, in a clinical setting, a confounded GCS score led to treatment for brain impairment, then it was valid notwithstanding the confounding factors.
18As I read the decision in Tournay, the arbitrator was of the view that if clinicians were of the view that a lowered GCS score was indicative of brain impairment, and proceeded to take measures to treat that impairment despite confounding factors, arbitrators should not question their judgment by deciding that confounded GCS scores are invalid as indicators of brain impairment.
19In the current case, the applicant recorded GCS scores of 8T and 9T in the recovery room following his surgery. I find that these are valid scores for the purposes of applying the provisions of s. 3(2)(d)(i).
‘As a result of…’
20Where the applicant’s submissions fall short is on the requirement that the lowered GCS score must be the result of brain impairment. His evidence regarding the linkage between brain impairment and the GCS score is scant. The applicant had a high level of blood alcohol when the crash occurred. First responders found him confused and gave him a GCS score ranging from 13 to 14. It is not entirely clear to me whether his confusion arose out of the accident or the alcohol. I did not have the evidence of a toxicologist to guide me in determining what type of behaviour and verbal response might be expected from a person with the applicant’s blood alcohol level so I am prepared to accept for the purposes of this analysis that his confusion was solely related to the accident.
21On arrival at the trauma unit in Toronto, the applicant’s GCS score was 15. In his evidence, Dr. Becker testified that at that point the applicant was not suffering from brain impairment. Thus by the time of his arrival in Toronto, any brain impairment the applicant may have sustained that might impact his GCS score had resolved. Thereafter, none of the applicant’s treatment providers address brain impairment. One Occupational Therapist, Inna Dainov, discusses a closed head injury but I do not consider her qualified to give such a diagnosis and she fails to set out any methodology for reaching that conclusion. I note that the applicant was referred to the treating hospital’s head injury clinic but he failed to attend.
22Faced with brain impairment that had resolved, not to reappear during active treatment, I must conclude that the readings of 8T and 9T in the intensive care recovery unit were not the result of brain impairment. They clearly resulted from the effects of anaesthesia and were taken while the applicant was recovering from the operation. The term used by the respondent’s expert, Dr. Yahmad, is “pharmacologic sedation and intubation to manage non-neurological conditions.” I accept his evidence.
23For his part, the applicant failed to lead evidence to link his lowered GCS scores to brain impairment. He produced an opinion from Dr. Becker that provides no analysis whatsoever. Dr. Becker recognized the applicant’s level of intoxication but finds that, since he had a GCS of 15 in the trauma unit, alcohol was having no effect on him. It is, of course, equally true that any brain impairment had resolved by that time. Dr. Becker simply draws the conclusion that because, at some point during treatment the applicant’s GCS dropped to 9 or below, he comes within the definition of catastrophic impairment in the Schedule as interpreted in recent case law. There is nothing of a medical nature in this conclusion; it limits itself to interpreting recent cases. It is of no benefit in understanding the issues. The role of an expert is to explain technical and scientific matters that are beyond the scope of the adjudicator’s expertise, not interpret the law. Legal interpretation is the adjudicator’s function.
CONCLUSION
24Having considered the evidence and the submissions of the parties, I find that the applicant did not sustain a catastrophic impairment as that term is used in s. 3(2)(d)(i) of the Schedule.
25The application is dismissed.
Released: November 9, 2017
___________________________
D. Gregory Flude, Vice-Chair
brain impairment that 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
Footnotes
- The exact wording of the section is:
- Now reported on as 16-000145 v Intact Insurance Company, 2017 CanLII 9823 (ON LAT)
- Tournay v. Dominion of Canada General Insurance Co., (2006) O.F.S.C.D. No. 137