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:
[The Applicant]
Appellant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
Applicant: [The Applicant] Counsel for the Applicant: Ian Furlong Student at law: Ava Williams
Counsel for the Respondent: Darrell March Student at law: Kevin Jeffrey Student at law: Susan Winemaker Student at law: Cemeka Douglas
Heard in Person: November 21, 22, 2018
OVERVIEW
1The applicant was injured in a motor vehicle accident on August 17, 2015, and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the “Schedule”). He applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.
2Case conferences were held on June 12, 2018, August 29, 2018, and on September 13, 2018, after which an in-person hearing was scheduled for November 21 and 22, 2018.
ISSUE IN DISPUTE
3Did the applicant sustain a catastrophic impairment within the meaning of the Schedule under section 3.1(1)4(i) resulting in a score of 9 or less on the Glasgow Coma scale, as a result of the accident?
PRELIMINARY MOTION
4The applicant brought a preliminary motion to allow video footage of part of the accident, showing the applicant lying on the ground, with the paramedic attending the applicant, to be introduced into evidence. The applicant’s motion also included the addition of a claim of entitlement to an award under Ontario Regulation 664, because the respondent has not accepted the applicant’s Glasgow Coma score of 8/15 and denied the admissibility of the video footage in question.
Analysis of Preliminary motion
Footage of the accident
5The applicant’s position is that that the footage is evidence of a brain impairment and the application by a Toronto Paramedic administering a Glasgow Coma Scale test. The applicant’s position is also that the footage ought to be able to be used as an aide memoire, to refresh the memory of the Toronto Paramedic who witnessed the accident.
6The respondent’s position is that the footage should be excluded, as it is not relevant to the issue to be determined. The footage does not show the applicant being struck, does not have a date or time stamp and there is no sound in the footage. There is a further issue as to any third party testifying to the reliability of the video, as the video was taken from a nearby gas station. The respondent also raises the fact that the Toronto Paramedic has two reports written at the time of the accident to refresh his memory.
7Evidence must be relevant and not unduly repetitious to be allowed in at a hearing.1 I agree with the respondent that the video footage does not relate to the determination of the issue before the Tribunal, but just reinforces that an accident took place. The footage has no relevance to the determination of the issue of whether the applicant suffered a catastrophic impairment. I also agree with the respondent that the Toronto Paramedic has reports written at the time to refresh his memory.
8I therefore dismiss that part of the applicant’s motion to have the video footage entered into evidence.
Award under Ontario Regulation 664
9The LAT Rules require efficient, timely resolution of the merits before the Tribunal.2 This means that all issues should be dealt with at one time. For the applicant to bring another application relating to the merits of an award would be costly and inefficient use of the Tribunal’s limited resources. The respondent has not shown any prejudice to the adding of the issue of an award to the proceedings. I am therefore allowing that part of the applicant’s motion to add the issue of entitlement to an award under Ontario Regulation 664.
RESULTS
10I find that the applicant did not sustain a catastrophic impairment within the meaning of the Schedule under section 3.1(1) 4 resulting in a score of 9 or less on the Glasgow Coma scale, as a result of the accident.
11I find that there is no evidence before me, to show that the insurer has unreasonably withheld or delayed payments, to justify any award under Ontario regulation 664.
BACKGROUND
12On August 17, 2015, the applicant was riding his bike on his way to work. As he approached an intersection, he was hit by a motor vehicle. The driver fled the scene. The applicant was knocked over his handle bars and was thrown a distance of approximately 15 feet before landing on the sidewalk.
13A Toronto paramedic, [D.A.], in an ambulance not far away, attended the applicant and provided medical assistance to the applicant as he was taken to the hospital.
14The applicant filed an Application for Accident Benefits (OCF-1) and an application for Determination of Catastrophic Impairment (OCF-19).
15An Ambulance Call report prepared by [D.A.] on August 17, 2015 indicated that the ambulance arrived at the scene at 7:33 a.m. The applicant was unconscious and regained consciousness shortly after contact by the paramedics. The report indicated that the applicant was complaining of headaches, but no physical injuries were seen. The applicant was taken to [a hospital].3
16An Incident Report was also prepared on August 18, 2015 by [the paramedic]. The report indicated that ambulance arrived at 7:33. The applicant complained of headaches, no dizziness or vomiting, and that there were no neurological deficits. [D.A.] in his cross-examination indicated that some symptoms of a head injury are nausea and vomiting, so he was required to ask the applicant if the applicant was nauseated. The applicant denied any nausea and did not vomit.4
17[D.A.], as part of the Ambulance Call Report, indicated that he completed the first Glascow Coma Scale (GCS) assessment at 7:40 a.m. resulting in an assessment of 15/15. A second GCS was completed at 7:46 a.m., resulting in an assessment of 15/15. A third GCS was completed at 7:50 a.m. resulting in an assessment of 15/15. He estimated that the applicant was unconscious for twenty seconds. [D.A.] indicated in his evidence that the 20 seconds that the applicant was unconscious was an estimate from the point of contact of the car hitting the applicant, to and including, the time that the paramedics made contact with the applicant.
18A medical report dated August 17, 2015, from the [hospital] from one of the triage medical staff T. Bajwa, indicates that the applicant did not recall striking his head. The applicant on cross-examination indicated that he did not recall striking his head.
19An incident report dated November 15, 2015 was prepared by [D.A.] to answer some questions posed by the applicant’s lawyers on a letter request of November 4, 2015. A second Incident Report was prepared on November 20, 2015. This second Incident Report scored the GCS as 8/15; eye opening a score of 1, verbal response a score of 2 and motor response a score of 5. This report also referred back to the Incident Report of August 18, 2015 for “a more detailed description.”
20This November 20, 2015 GCS assessment of 8/15 was not included in any written report prepared by [D.A.] prior to November 20, 2015. He indicated that it was an error by him of not including the GCS assessment of 8/15 in the previous written reports. [D.A.] also indicated in his evidence that when he prepared this report, he had no documents to review in the preparation of the report. His evidence on questioning by the Tribunal was that “the call itself was memorable to me at the time and I just remember specifics of it.”
21[D.A.] had been working as a Toronto paramedic, level 1, for only two months since June 2015. He admitted that, from August 2015 to November 20th 2015, he worked approximately 24-48 shifts. He would take from the low of 200 calls per shift to a high of 400 calls per shift. He also admitted on cross-examination that he did remember some aspects of the August 17, 2015 accident.
22Dr. Keith Meloff, a retired neurologist, gave evidence, as an expert for the applicant reviewing two reports being the August 18, 2015, report and the November 20, 2015 report written by [D.A.]. His position was that loss of consciousness by definition, equals the Glasgow Coma Scale of 9 or less, that the applicant had no response to eye movement, had incomprehensible sounds in an effort to speak, and he only moved to localize pain in the motor response. Dr. Meloff after reviewing the reports completed an OCF-19 indicating that the applicant had met the criteria for catastrophic impairment.5
23Dr. Meloff met the applicant once on August 2, 2016 (in relation to the issue before the Tribunal) and concluded that the applicant had well-documented post-concussive symptoms characterized by fatigability, irritability, mental confusion, reduced work capacity, disabling and interruptive migraine-like headaches. He indicated that the recurring migraine–like headaches is a common sequela to a traumatic brain injury. His evidence also included the fact that the applicant had a treating neurologist to assist the applicant with his depression and headaches, which supported a finding of brain injury.
24The respondent called Dr. G. Esmail, neurologist, as its expert witness who did a paper review of the (GCS) assessments contained in the Incident and Ambulance Call Reports.6 Dr. Esmail made comments on the Incident Report dated November 20, 2015. He noted the discrepancy between the GCS assessment findings in this report and the GCS assessment findings in the previous Incident and Ambulance Call Reports. Dr. Esmail didn’t rule out a GCS assessment of nine or less. The difficulty he had was that there was insufficient evidence relating to the November 20, 2015 Incident Report, such as written notes from [D.A.], to confirm the GCS was nine or less at the time of the accident. He also noted that there was no recording of a GCS of 8/15 in the previous Incident and Ambulance Call Reports. Dr. Esmail questioned how [D.A.] would have been able to determine the ratings at the time of the accident and remember the ratings three months later without written notes to review.
25Dr. Esmail also questioned the validity of assessment ratings in the November 20, 2015, report. The E1 part of the assessment relating to the eyes indicated that there was no eye opening. The V2 part of the assessment relating to vocal, indicated that the applicant was making sounds. The M5 part of the assessment relating to localizing pain meant that the applicant was able to respond to painful stimulus. Dr. Esmail felt the assessments would be highly unusual because making noises, language, and localizing pain is a more complicated process than opening the eyes which was only assessed at 1/15 with the other two assessments being assessed at 2 and 5. He questioned the reliability of the assessments. He also indicated that if a person can make noises and move their arms, then the GCS would be greater than 9/15.
26Dr. Esmail explained that he didn’t add these comments to his report because he couldn’t reconcile this issue of how the assessments were arrived at, because of the lack of written notes to explain the assessments in the November 20, 2015 Incident Report. He also testified that that because a person is found unconscious, it doesn’t necessary mean that there is a catastrophic impairment. He indicated that unconsciousness can mean many things and that is why the GCS was invented.
27Dr. Staniloiu at the Brain Clinic at Sunnybrook Health Science Centre concluded that the applicant sustained a traumatic brain injury which fell in the severe range.
ANALYSIS
28The Schedule requires a determination on an assessment for catastrophic impairment, of a finding of a score of 9/15 or less on the Glasgow Coma Scale (GCS) on a test administered within a reasonable period of time after the accident, by a person trained for that purpose.7 The issue to be looked at is brain impairment, and not brain injury with long-term impact.
29The 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 complete unresponsiveness 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 reflecting a complete lack of responsiveness.
30There is a very narrow issue here before the Tribunal as to whether the applicant sustained a catastrophic impairment within the meaning of the Schedule under section 3(2) (d) (I), resulting in a score GCS score of 9 or less, as a result of the accident.
31There are contradictions in the evidence as to the GCS ratings for catastrophic impairment. The Ambulance Call Report shows three ratings on the way to the hospital of 15/15. The only other assessment rating was set out in the November 20, 2015, report, being a rating of 8/15. This latter report was confusing, as it referred to the initial Incident Report for greater details of the accident, but also indicated another assessment was apparently completed at the site of the accident, but never properly recorded in writing. There is no question that if the November 20, 2015, report is accepted as a credible report, that the applicant meets the test for impairment under the GCS as set out in the Schedule.
32I have issues however relating to the November 20, 2015 report. Why was the GCS of 8/15 as set out in the November 20, 2015 report, not noted in the Ambulance Call Report dated August 17, 2015? Why was the further incident report of November 20, 2015 created, when [D. A.] had completed the prior Incident and Ambulance Call Reports, which could have been given to the applicant’s lawyers when they requested more information? [D. A.] gave no credible answer to these questions when asked at the hearing. I can only assume because of his inexperience and his busyness with other calls, that he failed to make complete detailed reports as required of him as a paramedic of the alleged first GCS rating. I also question the accuracy of the November 20, 2015, report made three months after the accident, and made without reference to any written notes. [D. A.] admitted that he dealt with between 200-440 other calls during the three month period and we don’t know if the GCS of 8/15 made on November 20, 2015, related to one of the other calls.
33Dr. Esmail raised a further issue of the November 20, 2015 ratings. Dr. Esmail felt the assessments would be highly unusual because making noises, language, and localizing pain is a more complicated process than opening the eyes which was only assessed at 1 with the other two assessments being assessed at 2 and 5. He questioned the reliability of the assessments. He also indicated that if a person can make noises and mover their arms then the GCS would be greater than 9.
34I accept the evidence of Dr. Esmail over Dr. Meloff. The issues that Dr. Esmail raises relating to the assessment being recorded three months later, and the reliability of the ratings are valid issues. There is an issue of credibility for the GCS rating of 8/15, when there was no written evidence to support those findings, set out in the November 20, 2015, Incident report. There was no credible evidence to explain why that report was written 3 months after the accident. I also question how [D. A.] could have remembered the three ratings of the GCS that he put into the November 20, 2015 report, when he had no documentation to refresh his memory and he had made 200-400 other reports, during the three month time frame. There is also the reliability issue of the ratings when the rating for eye opening was lower (instead of being higher) than the other two ratings for motor and voice response. This raises the issue of accuracy of the ratings in any event.
35I find that there is a credibility issue here relating to the November 20, 2015, Incident Report, both as to the accuracy of the ratings, and as to whether the GCS was ever completed, as alleged, on the date of the accident. I find, based on the evidence of the circumstances leading up to the alleged assessment of the November 20, 2015 Incident report, the circumstances of the reporting of the alleged assessment three months later, the lack of written recording of such an assessment at the time it was alleged to have taken place, and the actual assessment ratings found, that the alleged GCS assessment of 8/15 was never initiated at the time of the accident.
36Based on the evidence before me, I find that the applicant did not sustain a catastrophic impairment within the meaning of the Schedule under section 3.1(1) 4, resulting in a score of 9 or less on the Glasgow Coma Scale, as a result of the accident.
Award under Ontario Regulation 664
37I find no evidence that the respondent has unreasonably withheld or delayed payments to justify any reward.
Released: March 13, 2019
Robert Watt
Adjudicator
Footnotes
- Statutory Powers Procedure Act sec 15
- Lat Rules 3.1
- Applicant’s Medical Documentation Tab 2
- Ambulance Call Report dated August 17, 2015 Respondent’s Hearing Brief vol 3 tab 25
- Report of Dr. Meloff dated September 12 2018-Medical Documentation of Applicant Tab 4
- Report of Dr. Esmail dated November 30, 2017-Hearing Brief of Respondent Vol1- Tab 22
- Schedule s3(2) (d) (i)