July 18, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant and Gore Mutual LAT 16-001305
Date of Decision: June 16, 2017
Heard Before: Adjudicator Catherine Bickley
Catastrophic Impairment: Is a single GCS reading of 9 or less sufficient to determine CAT ? Can the score be impacted by intubation and drugs? Expert witness or advocate?
On December 20, 2014, the applicant was seriously injured in an accident. He was twelve years old at the time of the accident. He was taken to the local hospital, and then to London Health Science Centre where he remained until he was discharged on December 27, 2014. He returned to school three months later.
On July 30, 2015, the applicant’s mother submitted an OCF-19 to determine CAT. It was completed by Dr. NM, who was involved in the applicant’s care at LHSC and later as an outpatient. Dr. NM checked off Criteria 6 of the SABS indicating that the applicant had,
“brain impairment that, in respect of an accident, (i) results in a score of 9 or less on the Glasgow Coma Scale (“GCS”), according to a test administered within a reasonable period of time after the accident by a person trained for that purpose”
In October 2015, Gore determined that the applicant had not sustained a catastrophic impairment based on a paper review by neurologist Dr. FF. The applicant appeals that determination.
An individual who is found to be catastrophically impaired as the result of an accident has access to a larger envelope of benefits if they establish that those benefits are reasonable and necessary. The parties agreed to certain facts of the case.
The Arbitrator reviewed the evidence and the law. She noted that the GCS is clear. First responders and other medical personnel use the GCS to quickly assess and record an injured person’s level of consciousness. It has measures three components; eye opening, verbal response and physical response. The scale is 3-15 with anything below 9 determining catastrophic impairment. It is not objective.
The parties agreed to the medical records which showed the applicant had a variety of traumas including broken ribs, fractured vertebrae, spleen damage, and concussion like symptoms. Immediately after arriving at the hospital the applicant had a GCS of 13, which rose to 15 and then fell to 7. It fluctuated for a couple of days before rising back up to 15. While in the hospital he was given morphine, fentanyl, and ketamine. He was intubated.
The applicant relies on Liu from Ontario Court of Appeal decision, which states “Provided there is brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident. It is a legal definition to be met by a claimant and not a medical test.” The applicant also points to his seven GCS scores of 9 or less and the evidence that he sustained a concussion with amnesia, dizziness, photophobia and fatigue to support this position. He maintains that a concussion fits the definition of impairment in s.3 (1) of the Schedule. The applicant further submits that s.3 (2)(d)(i) does not contain qualifying phrases such as “while not intubated” or “while not under the sedating medications”. The section also does not contain any modifiers such as “valid”, “reliable”, “on-going”, “durable” or “significant”. He submits that such qualifiers or modifiers should not be read into the section. Instead, on a plain reading of the section and consistent with the Liu decision, a GCS score of 9 or less, in the presence of brain impairment that results from an accident, is enough to establish catastrophic impairment.
Gore argues that the GCS scores are not valid as they were not taken correctly. Their expert witness concluded that if they had been taken correctly due to the drugs and intubation, and the lowest score the applicant would have had would be 10 if measurements were done correctly. The Arbitrator took issue with Gore’s expert witness indicating that the testimony was not that of an expert witness but rather that of an advocate. The Arbitrator noted that the witness made speculative observations, and jumped on to incorrect conclusions. On this basis the Arbitrator gave little weight to the report.
The Arbitrator determined that on the basis of all the evidence the applicant sustained a concussion as a result of the accident and concluded that a concussion meets the Schedule’s definition of brain impairment. The Arbitrator noted there is no suggestion in any of the evidence that the applicant’s concussion resulted from any cause other than the December 20, 2014 accident.
The Arbitrator concluded the concussion constitutes brain impairment, and points to Divisional Court in Hodges:
It is sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment to make that person’s GCS score relevant for the purposes of the definition in the SABS.
The Arbitrator disagreed with Gore’s notion that the applicant’s GCS scores of 9 or less confounded by medication and/or intubation. The medical evidence indicates that it is not at all clear the applicant was intubated solely for oxygen. There is a note on the record prior to intubation that he “wants to sleep”. Further, other documents record that the applicant was intubated after he became somnolent and combative. The applicant was in distress and was given the treatment required to deal with that distress.
The Arbitrator dismissed Gore’s submission that the GCS scores were conducted by someone not appropriately trained to do so. Gore accepted the submissions at the outset of the hearing. Having agreed that the tests were administered by persons trained for that purpose, Gore cannot, through their IE report, resile from that agreement.
On this basis the Arbitrator found that the applicant sustained brain impairment as a result of the December 20, 2014 accident, that impaired brain function was one factor leading to the medical decision to intubate and medicate the child and that he had seven valid GCS scores of 9 or lower following the accident. Thus he has satisfied the criteria set out in s.3(2)(d)(i) of the Schedule.