Citation: Z.R. & A.R. vs. Certas Direct Insurance Company, 2020 ONLAT 18-001468/AABS

Released Date: 07/31/2020

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:

[Z.R.]

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR:

Paul Gosio

APPEARANCES:

For the Applicant:

[Z.R.], Applicant

Patrick Brown, Counsel

For the Respondent:

Certas Direct Insurance Company

Philippa G. Samworth, Counsel

HEARD: In-Person:

March 7, 2019

1The applicant seeks a determination that he is catastrophically impaired pursuant to section 3.1(1) 5.i of the Statutory Accident Benefits Schedule (as amended June 2016).

2On October 31, 2016, the applicant was struck by a vehicle while trick or treating with his twin sister. He was 13 years-old at the time and suffered a fractured right femur and a traumatic brain injury.

3On April 10, 2017, Dr. Siow completed an Application for Determination of Catastrophic Impairment (“OCF-19”) indicating that the applicant was catastrophically impaired based on a traumatic brain injury.

4The respondent, by way of an Explanation of Benefits dated October 26, 2017, denied that the applicant sustained a catastrophic impairment. The respondent takes the position that the applicant has failed to meet the test for catastrophic impairment under section 3.1(1) 5.i of the Schedule.

5The applicant disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution. The parties could not resolve the issues in dispute, so the matter proceeded to a hearing.

ISSUE IN DISPUTE

6The issue to be determined is whether the applicant sustained a catastrophic impairment as defined by section 3.1(1) 5.i of the Schedule.

RESULT

7I find that the applicant is not catastrophically impaired as defined by section 3.1(1) 5.i of the Schedule.

FACTS

8On October 31, 2016, the applicant was struck by a vehicle while trick or treating with his twin sister. He was 13 years-old at the time. According to the Ambulance call report, the applicant was found with obvious trauma to his right upper leg. He denied any loss of consciousness, neck pain, headaches or dizziness. There was no vomiting, apparent change in consciousness and his Glasgow Coma Scale (“GCS”) score was 15 out of 15 on three separate occasions.

9The applicant was rushed to Sick Kids Children’s Hospital (“Sick Kids”) where he was admitted on an inpatient basis due to a fracture of his right femur. He remained there until discharged on November 8, 2016.

10A CT scan of the applicant’s head was taken on November 1, 2016. The CT scan was normal, and the report noted no acute intracranial findings. On November 2, 2016, the applicant underwent surgery for the fracture of his right femur. The November 6, 2016 Nursing Progress Note from Sick Kids indicated that the applicant reported a “little” headache. He was not referred to a neurosurgeon, neurologist, or neuropsychologist while at Sick Kids and no concerns were raised with respect to a possible brain injury.

11On November 21, 2016, the applicant was admitted to the Holland Bloorview Kids Rehabilitation Hospital (“Holland Bloorview”) on an outpatient basis. The admission notes dated November 21, 2016 confirm that the CT scan of the applicant’s head was normal but noted that the applicant was dealing with some light and noise sensitivity and that he may have sustained a concussion. The Progress Note of Dr. Ladha, dated November 25, 2016, indicated that the applicant reported more frequent headaches with some light and noise sensitivity, fogginess and nausea.

12The applicant completed his outpatient day program at Holland Bloorview on December 31, 2016. Dr. Ladha’s discharge summary indicated that the applicant described his headaches and sound sensitivity as resolved. He was tolerating schoolwork well and was having tutoring outside his day program at Holland Bloorview. Dr. Ladha indicated that the applicant’s concussion was much improved and expected that the applicant’s symptoms would resolve with no long-term difficulties.

13On February 22, 2017, the applicant had an MRI and a SPECT scan conducted at the Southlake Regional Health Centre (“Southlake”). The MRI indicated that there was no acute intracranial mass haemorrhage or infarct. According to Dr. Siow, Director of Nuclear Medicine at Southlake, the SPECT scan demonstrated that the applicant suffered a previous traumatic brain injury.

14Dr. Siow completed an OCF-19 indicating that, pursuant to section 3.1(1) 5.i of the Schedule, the applicant was catastrophically impaired based on a traumatic brain injury. The respondent referred the OCF-19 to Dr. Cheung, radiologist, for a paper review. Dr. Cheung concluded that the SPECT scan findings are non-specific. By way of an Explanation of Benefits dated October 26, 2017, the respondent informed the applicant that it had determined that the applicant did not sustain a catastrophic impairment as defined by the Schedule.

THE LAW

15Section 3.1 (1) 5. i. of the Schedule states:

3.1 (1) For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in any of the following:

If the insured person was under 18 years of age at the time of the accident, a traumatic brain injury that meets one of the following criteria:

i. The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly (Emphasis Added).

POSITION OF THE PARTIES

The Applicant’s Position

16The applicant interprets section 3.1 (1) 5. i. of the Schedule to have three requirements that must be fulfilled in order to be deemed catastrophically impaired:

The child was admitted on an in-patient basis to a public hospital named in a Guideline;
The child had positive finding indicating intracranial pathology;
On a medically recognized brain diagnostic technology.

17The applicant submits that he has met all three criteria of the test and that there is no temporal requirement that the criteria be met simultaneously. He was admitted on an in-patient basis to Sick Kids on October 31, 2016, which is a public hospital named in a Guideline. The SPECT scan completed on February 22, 2017, revealed a positive finding indicating intracranial pathology and the SPECT scan is a medically recognized brain diagnostic technology.

The Respondent’s Position

18The respondent interprets the section to have the following three requirements which imposes a temporal requirement:

The child was admitted on an in-patient basis to a public hospital named in a Guideline;
Because they have a positive finding indicating intracranial pathology on a medically recognized brain diagnostic technology;
That was conducted while an in-patient in that hospital.

19The respondent concedes that the applicant was admitted to Sick Kids on an in-patient basis which is a public hospital named in a Guideline. The respondent also concedes, for the purposes of this hearing, that a SPECT scan is a medically recognized brain diagnostic technology. The respondent however submits that the applicant has not met the test for catastrophic impairment for the following reasons. First, although the respondent concedes that the applicant was admitted on an in-patient basis to a public hospital named in a Guideline, it was not because he had a positive finding indicating intracranial pathology but because he had a fractured femur. Second, the respondent submits that the positive finding indicating intracranial pathology must be conducted while an in-patient in the hospital. In this case, the respondent submits that the only positive finding indicating intracranial pathology came from Dr. Siow’s evidence with respect to what the SPECT scan revealed but that that was not completed until February 22, 2017 which was well after the applicant was discharged from Sick Kids.

ANALYSIS

Principles of Statutory Interpretation

20The Supreme Court of Canada has outlined the approach one should take when issues of statutory interpretation arise. This “modern approach” has been outlined in numerous Supreme Court of Canada decisions, including Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para 26, citing the Construction of Statutes (2nd ed 1983) at page 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

21One of the essential objectives of this approach is to avoid absurd results. The Supreme Court of Canada has explained that an absurd result can include interpretations which lead to "ridiculous or frivolous consequences". In Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLii 837 (SCC) at para 27, the Supreme Court of Canada stated:

… It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Cote, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment…

22Ayr Farmers Mutual Insurance Company v Wright, 2016 ONCA 789 at para 27 confirms that the rules governing statutory interpretation apply equally to regulations such as the Schedule.

23 Ontario's Legislation Act, 2006, SO 2006, c 21, Schedule F, s. 64(1) provides additional guidance on statutory interpretation, requiring that legislation be given a "liberal interpretation".

24Recent amendments to a particular statute or regulation may aid in discerning the intention of Parliament for the purposes of a statutory interpretation analysis.

Legislative Purpose of the Schedule

25The starting point in any case considering the interpretation of a provision within the context of the Schedule is Smith v Co-operators General Insurance Co., 2002 SCC 30. At paragraph 11 of that decision, Justice Gonthier held that "there is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance." Numerous Tribunal decisions have similarly held that the Schedule is consumer protection legislation and, as such, must be read generously with any limitations construed narrowly.

Recent Legislative Amendments

26The Government’s 2010 automobile insurance reforms included a commitment to consult with the medical community on the definition of catastrophic impairment as found in the Schedule. A Catastrophic Impairment Expert Panel (“Panel”) was established in order to conduct a review and make observations and recommendations to the Financial Services Commission of Ontario’s Superintendent through various reports. Those recommendations were taken into account, along with stakeholders’ submissions and presented which prompted the Superintendent to make recommendations to the Minister of Finance on amendments to the definition of catastrophic impairment as set out in the Schedule.

27The recommendations made in the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule aim to improve the fairness and predictability of the process for determining catastrophic impairments.

28The 2016 amendments to the Schedule brought about a significant shift in how brain injured children are treated under the Schedule. Prior to the 2016 amendments, both children and adults were assessed under the same section for the purposes of the catastrophic impairment analysis. Now, following the 2016 amendments, separate provisions in the Schedule were created specifically for children with brain injuries, granting them catastrophic status automatically if the required criteria were met. The 2016 amendments also added objective scientific and evidence based criteria to determine who would qualify for a catastrophic traumatic brain injury.

29The Superintendent’s report noted that an automatic designation would give claimants immediate access to the appropriate benefits thereby avoiding long waiting periods for a final determination which could impose unnecessary stress on the families. Furthermore, the Superintendent’s report notes that because a s.44 insurers examination would no longer be needed under this section, there should then be a reduction in the assessment and other transaction costs to the insurance system.

30The applicant submits that the 2016 amendments make it obviously clear that a primary objective of the legislature was the protection of children with brain injuries. The respondent submits that the 2016 amendments make it clear that the intent of the legislature was to reduce the number of individuals who would be found to qualify for catastrophic impairment with respect to a brain injury or any other catastrophic impairment category (which is reflected in the changes made with respect to how one would qualify for 55% whole person impairment and/or the criteria for qualifying for a mental behavioural disorder pursuant to chapter 14 of the AMA guides) for that matter.¹

31I disagree with both the applicant’s and respondent’s submission. The Recommendations for Changes to the Definition of Catastrophic Impairment – Final Report of the Catastrophic Impairment Expert Panel to the Superintendent dated April 8, 2011 and the Superintendent’s Report on the Definition of Catastrophic Impairment in the Statutory Accident Benefits Schedule indicate that it was the opinion of the Panel that the pre 2016 amendment system led to inconsistent catastrophic impairment determinations which frequently got the diagnosis wrong. The proposed changes were made in order to make the process more accurate, consistent and objective and would also speed up determinations and reduce transaction costs and disputes. I do, however, acknowledge that many individuals will find it more difficult to qualify for a catastrophic impairment designation under the 2016 amendments than under the previous system.

The Word “With”

32The disagreement between the parties with respect to the interpretation of section 3.1(1) 5.i of the Schedule focuses on their respective interpretations of the word “with” within section 3.1 (1) 5. (i) of the Schedule. The word “with” is not defined in the Schedule.

33The applicant submits that the word "with" is synonymous with "in addition to". The applicant submits that this interpretation is supported by the Black’s Law Dictionary² definition of the word “with”. The Black’s Law Dictionary states that the word “with” is sometimes equivalent to the words “in addition to” (Emphasis Added). The applicant submits that if the word “with” is replaced with the words “in addition to” then it becomes clear that the legislation does not require that the positive findings indicating intracranial pathology occur while the child is an in-patient at the hospital.

34The applicant submits that this interpretation is consistent with the principles of statutory interpretation, the intentions of the legislature and would not lead to absurd results.

35The respondent disagrees with the applicant’s interpretation of the word "with". The respondent directs me to the Random House Dictionary of the English Language³ which defines "with" as "Accompanied by, in some particular relation to, especially implying interaction, conjunction or connection."

36Similarly, the respondent directs me to the New Shorter Oxford Dictionary⁴, which defines "with" as "denoting association or accompaniment, as part of the same, combination, arrangement." The respondent submits that these definitions suggest that the more common sense approach to the use of the word "with" in the definition of catastrophic impairment means that in order to meet the definition that one must have a positive finding on one of the tests outlined while in the hospital as opposed to four months later. This is consistent with the purpose of this legislation to identify at a very early stage those individuals who should be deemed to be catastrophic so early treatment can be provided.

37I am persuaded by the respondent’s submission in this regard and find that the word "with" requires that an applicant must have a positive finding on one of the tests outlined while being an in-patient in the hospital. A plain reading of the section, while keeping in mind the intentions of the legislature, supports this finding. The legislature’s use of the word “with” denotes a temporal association or connection between a person’s admission to a hospital on an in-patient basis and a positive finding on one of the appropriate tests outlined. If the legislature had intended a different interpretation, it could have used the words “in addition to” or “and” instead of the word “with”. Again, it is important to keep in mind that the proposed changes were made in order to make the process more accurate, consistent and objective and would also speed up determinations and reduce transaction costs and disputes. This interpretation is consistent with this intention and as such, I find that the section would generally require an injured person to have a positive finding on one of the tests outlined while an in-patient at the hospital.

38The applicant submits that this interpretation would lead to absurd results as an in-patient may not be given one of the required tests due to hospital resources, the discretion of the treating physician, and/or due to other more observable and apparent injuries that may command immediate attention. I disagree with the applicant’s submission in this regard. If an applicant can establish that a positive finding would have been made but for one of the circumstances outlined by the applicant, then they may be able to satisfy the criteria outlined in the section.

39I also note that an applicant who does not meet the definition of a catastrophic impairment under this section, may still meet the definition of a catastrophic impairment at some later stage under a different definition.

Conclusion

40For the reasons outlined above, I find that the applicant is not catastrophically impaired as defined by section 3.1(1) 5.i of the Schedule.

Released: July 31, 2020