January 03, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
EW v Primmum Insurance Company LAT 16-003891 2017 CanLII 77396 (ON LAT)
Decision Date: November 9, 2017
Heard Before: Adjudicator D. Gregory Flude
CATASTROPHIC IMPAIRMENT: When is the GSC score of 9 or less accurate to diagnose CAT impairment; brain impairment vs brain injury;
EW was injured in a single vehicle accident on 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 EW communicated with them but seemed somewhat confused. They applied a test to EW to determine his level of mental impairment, the GCS, and marked him as 13 out of a maximum score of 15. At no time did his GCS fall below 13 until he was intubated and anesthetized for surgery.
EW claimed SABs benefits from Primmum. He has exhausted the monetary limits of the medical benefits that were available to him and now seeks to be classified as catastrophically impaired.
EW submits he suffered brain impairment in the accident and relies on his having a GSC score of 9 or less. Primmum argues that EW’s lowered GCS score was unrelated to any brain impairment EW may have suffered in the accident. The score was taken in the recovery room as EW came round after surgery to repair the fractures in his legs.
- Is EW catastrophically impaired as a result of a brain impairment that resulted in a score of 9 or less on the GSC within a reasonable time after the accident?
- The evidence establishes that EW was not showing signs of brain impairment when he arrived at the trauma unit of a major 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.
EW seeks a determination that he is catastrophically impaired as that term is defined in the Schedule. A person is catastrophically impaired if they suffer brain impairment that results in a score of 9 or less on the Glasgow Coma Scale.
On arrival at hospital EW had was treated for major injuries 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 EW was intubated and sedated. Following the operation, EW 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 EW recovered in the recovery room and in the ICU and his GCS scores remained above 9T.
It is possible that an injured person may have injuries that inhibit the ability to test in all three parameters of the GCS. 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, EW scored 8T because his airway had been intubated for the operation and he could not speak.
Brain Impairment v. Brain Injury
The Adjudicator stated that it is important to note that the definition in the Schedule does not require proof of a brain injury. A number of symptoms were identified that lead physicians to believe that EW was suffering from post-concussion syndrome. EW suffered serious injuries to his face and the doctor concluded that he also suffered concussion. The Adjudicator did not find evidence relevant to the issue before him because the doctor addressed the question of whether EW suffered a brain injury with long term impact, not brain impairment as measured by the GCS in and around the time of the accident.
The 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,  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. The Adjudicator found this analysis persuasive.
In the current case, EW 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…’
Where EW’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. EW 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 whether his confusion arose out of the accident or the alcohol. For the purposes of this analysis the conclusion is that his confusion was solely related to the accident.
On arrival at the trauma unit in Toronto EW’s GCS score was 15, and EW was not suffering from brain impairment. Thus, by the time of his arrival in Toronto, any brain impairment EW may have sustained that might impact his GCS score had resolved. Thereafter, none of EW’s treatment providers address brain impairment. The Adjudicator noted that EW was referred to the treating hospital’s head injury clinic but he failed to attend.
Faced with brain impairment that had resolved, not to reappear during active treatment, the Adjudicator concluded 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 EW was recovering from the operation.
EW failed to lead evidence to link his lowered GCS scores to brain impairment.
Having considered the evidence and the submissions of the parties, the Adjudicator found that EW did not sustain a catastrophic impairment as that term is used in s. 3(2)(d)(i) of the Schedule.