P. L. F. R. v. Intact Insurance Company, 2017 CanLII 9823

Tribunal File Number: 16-000145/AABS

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:

P. L. F. R.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: D. Gregory Flude, Vice-Chair

APPEARANCES:

Counsel for the Applicant: Charles Gluckstein

Jessica Stansfield, Student at Law

For the Respondent: Leslie Geurette,

Counsel for the Respondent: Michelle Mainprize

HEARD: Licence Appeal Tribunal: November 29, 2016

REASONS FOR DECISION AND ORDER

OVERVIEW

1. The applicant was injured in a multi-vehicle accident on October 2, 2015. She suffered serious life-threatening injuries that required her to be airlifted to a major Toronto trauma centre for emergency surgery. She applied for and has received medical and other benefits from the respondent but is now in a dispute with the respondent about the extent of the benefits to which she is entitled. She asserts that she has suffered a “catastrophic impairment” as that term is defined in the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule) and is, thus, entitled to enhanced benefits.

2. While there are a number of defined conditions that fit into the definition of catastrophic impairment, the applicant relies on the definition in s. 3 (2)(d)(i) of the Schedule. According to that definition, the applicant has suffered a catastrophic impairment if, as a result of the accident, she suffered brain impairment that results in a score of 9 or less on the Glasgow Coma Scale (GCS).

3. The evidence is clear that the applicant suffered a brain injury in the form of a subarachnoid haemorrhage. Following the accident, emergency personnel recorded a series of GCS scores ranging from 12 to below 9. The respondent argues that all recorded scores below 9 did not result from the brain impairment. They resulted from endotracheal intubation and sedation in the emergency room.

4. For reasons more fully set out below, I find that applicant did suffer a catastrophic impairment.

ISSUE

5. Did the applicant suffer a catastrophic impairment as a result of brain impairment sustained in the motor vehicle accident on October 2, 2015?

RESULT

6. The applicant did suffer a catastrophic impairment.

ANALYSIS

7. The 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 for eye opening is 4; for motor response is 6; and for voice response is 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.

8. The 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, 1981.¹ Section 3.1 (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.

9. Both parties agree that s. 3.1 (d)(i) sets out a four point test:

a. Did the applicant suffer brain impairment as a result of the accident;

b. Did the brain impairment result in a GCS score of 9 or less;

c. Was the GCS test administered within a reasonable time following the accident; and

d. Was the GCS test administered by a person qualified to do so?

10. Both parties also agree that the requirements of the last two branches of the test have been satisfied. All of the tests were administered within a reasonable time following the accident by a person qualified to do so. Initially the applicant was tested by paramedics in the ambulance. She was frequently tested by emergency room staff, air ambulance paramedics and treating physicians.

11. As stated above, it is clear from the evidence that the applicant suffered brain impairment as a result of the accident. She had a reduced GCS score of 12 in the ambulance on her way to the emergency room which is indicative of brain impairment. She had a large laceration of her scalp that exposed the skull, and subsequent investigation showed a subarachnoid haemorrhage, or in lay terms, bleeding of the lining of the brain. While the respondent argued that a subarachnoid haemorrhage is not a brain injury, a brain injury is not a prerequisite to recovery. It is the brain impairment reflected by the lower GCS score that is of importance in this discussion.

12. The applicant had a number of very serious injuries including multiple fractures of the pelvis and evisceration of the right side of her abdomen. When she arrived at the emergency room she was immediately actively treated. The hospital notes indicate dropping blood pressure and a GCS fluctuating between 13 and 10. Notwithstanding that her airway was clear, she was intubated with an endotracheal tube and was given medication to assist in the intubation process and thereafter, including Succinylcholine, Fentanyl, and Propofol. Following intubation, subsequent GCS scores are denoted with a T to indicate that, as a result of intubation, the voice component could not be tested. Her scores range from 7T to 2T during the air ambulance trip and in the emergency department at the Toronto trauma centre.

13. In addition to documentary evidence, I had reports from and heard oral evidence from two expert witnesses, Dr. Garry Moddel, a Neurologist and Dr. Harold Becker, a General Practitioner, with extensive experience in catastrophic impairment designations. Both doctors conducted a review of the medical documentation only, neither having met the patient.

14. The difficulty I have with Dr. Moddel’s report² is that he appears to conflate two concepts. He notes that the applicant’s GCS did fall to 7T but goes on to state that: “this was in relation to sedation and from the information available, there is no evidence of any neurological deficit.” He does not comment on the subsequent drop in the score to 5T and then to 2T. With respect to the subarachnoid haemorrhage, he states: “Her CT scan showed a small subarachnoid hemorrhage [sic] but she recovered and apparently there was no neurological abnormality.” Thus, in his view, a person does not meet the definition of “catastrophic impairment” unless there is evidence of a continuing neurological deficit.

15. I can see nothing in s. 3.1 (2)(d)(i) that requires an ongoing neurological deficit to qualify for a catastrophic impairment designation. Rather, the subsection sets a threshold that once crossed, earns the designation of catastrophic impairment. Such a designation does not entitle an injured person to payment; it simply makes higher policy limits available should treatment be necessary. If treatment is not necessary because of complete early recovery, there is no practical effect to the designation.

16. To address Dr. Moddel’s point, a long term neurological deficit may attract a designation of “catastrophic impairment” but that there is a separate testing protocol set out in s. s. 3.1(2)(d)(ii). That section applies another test known as the Glasgow Outcome Scale to determine neurological deficit. S. 3.1 (2)(d)(i) addresses itself solely to events in close time proximity to the accident and requires me to look no further than the GCS score taken within a reasonable time of the accident by a person qualified to do so.

17. Dr. Becker’s evidence focusses on the validity of GCS scores when a patient is intubated. He has corrected a number of the recorded scores from the medical records and I accept his corrections. Two, in particular, are of note. The first air ambulance score notes the applicant as 7T. Dr. Becker points out that that score includes a mark of 1 for voice. In his evidence he stated that, since a voice response is impossible with intubation, no score should be assigned and the score should be 6T, the T taking the place of the score of 1. He makes the same finding with respect to a score of 3T at the Toronto trauma centre and I accept that the score should be 2T.³

18. I accept Dr. Becker’s evidence that a GCS score from an intubated patient is nonetheless reliable. In their 1981 paper the authors, Jennet and Teasdale, specifically address the question of intubation in the “Verbal Performance” section, stating: “One of the advantages of this coma scale is that it allows responsiveness to be assessed even when some information is missing.” Thus, I accept that the applicant had valid GCS scores below 9, ranging from 7T to 2T in the hours following the accident. The more difficult question is causation.

19. The respondent relies on Dr. Moddel’s conclusion that the score of 6T (quoted as 7T) is the result of intubation and sedation. Dr. Becker notes that the applicant was hypovolemic from loss of blood and that her blood pressure was dropping. He states that hypovolaemia will result in decreased brain function and a lower GCS score. I note that her GCS is recorded as fluctuating from 13 to 10 prior to her transfer to the Toronto trauma centre, supporting Dr. Becker’s opinion on the effects of the blood loss.

20. Hospital records indicate that she was given massive blood transfusions at the Toronto trauma centre. These had no effect on her GCS score. Indeed it continued to drop to 5T. As she left the trauma centre for the operating room she recorded a 2T. Thus, despite the inability to measure a voice component due to intubation, even permitting the maximum score of 5 on the voice scale, her GCS would have been no more than 7. I note that, despite blood transfusions, her GCS continued to drop. Dr. Moddel acknowledges only a GCS score of 7T and does not comment on the lower scores in the Toronto trauma centre or tie it to any specific increase in sedation. Thus while sedation undoubtedly had an effect on the applicant, in light of all the evidence, I find that the applicant’s brain impairment and lowered GCS scores were caused by her brain injury and hypovolaemia directly resulting from the accident.

COSTS

21. Both parties made submissions as to costs. My ability to award costs is severely restrained by the provisions of s. 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990 chap S. 22. According to the provisions of s. 17.1, I may only make an order for costs if two preconditions have been satisfied: the Tribunal has made a costs rule and the behaviour of the party against whom a costs award is being sought has been “unreasonable, frivolous or vexatious or a party has acted in bad faith.” While the first part of s. 17.1 has been satisfied by the Tribunal’s Rule 19, neither party led evidence that would satisfy the second part of the test.

22. Rule 19 does closely mirror the wording of s. 17.1. It limits awards of costs to behaviour “in a proceeding.” As with s. 17.1 it does not adopt the philosophy that the winning party is entitled to costs. Rather it limits costs awards to situations where the behaviour of a party before the Tribunal has been such that it should attract sanction. Any costs awarded under the rule would address the impugned behaviour. That is, it is not a threshold that once crossed allows for a full award of everything claimed in the bill of costs. It is a tool that permits the Tribunal to tailor a costs award that addresses the impugned behaviour.

23. The current matter involved a genuine dispute between the parties. Notwithstanding that I have found for the applicant, the respondent’s case was not without substance. Further, the behaviour of the parties, through their counsel, throughout the proceeding has been exemplary. They have worked to narrow the issues and resolved everything that could be resolved before the hearing. I can find nothing unreasonable, frivolous, vexatious or bad faith about the manner in which the matter proceeded, nor was any such behaviour drawn to my attention. Accordingly, there will be no order as to costs.

ORDER

24. Having considered all of the evidence and the submissions of the parties, I find that the applicant suffered a catastrophic impairment in the accident on October 2, 2016 and is entitled to enhanced coverage for medical and rehabilitation and other benefits in accordance with the Schedule.

Released: January 5, 2017

___________________________

D. Gregory Flude, Vice-Chair

Footnotes

1. 1Ex. 2
2. 2Ex. 1
3. 3Ex. 11 The Glasgow Coma Scale at 40 years: standing the test of time Teasdale et al. www.thelancet.com/neurology Vol. 13 August 2014