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Is your brain impairment enough to render a catastrophic impairment designation?

As of April 1, 2016, the way accident benefit disputes will be handled has changed.  The License Appeals Tribunal (LAT) will handle arbitration applications instead of FSCO.  On November 29, 2016, the LAT heard one of the first decisions on the catastrophic impairment designation.  The decision,  P.L.F.R. and Intact Insurance Company  (Tribunal File #16-000145/AABS) is about an applicant who suffered serious life-threatening injuries in a multi-vehicle accident on October 2, 2015 that required her to be airlifted to a trauma centre for emergency surgery.  The issue to be determined was whether the applicant, P.L.F.R., suffered a catastrophic impairment as a result of brain impairment sustained in the car accident.

The evidence was clear that the applicant suffered a  brain impairment as a result of the accident.  She had a large laceration of her scalp that exposed the skull, and subsequent investigation showed a subarachnoid haemorrhage (bleeding of the lining of the brain).

Following the accident, emergency personnel recorded a series of Glasgow Coma Scale (GCS) scores ranging from 12 to below 9.  The Tribunal explained that the GCS score is a clinical tool used by first responders and clinicians to assess the consciousness of patients.  The respondent, Intact Insurance Company (Intact), argued that all recorded scores below 9 did not result from the brain impairment.  They resulted from endotracheal intubation and sedation in the emergency room.

Section 3.1(d)(i) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule), sets out a four point test: i. Did the applicant suffer a brain impairment as a result of the accident; ii. Did the brain impairment result in a GCS score of 9 or less; iii. Was the GCS test administered within a reasonable time following the accident; and iv. Was the GCS test administered by a person qualified to do so?

This subsection then goes on to define a catastrophic impairment as a score of 9 or less on the GCS.  The subsection sets a threshold that once crossed, earns the designation of catastrophic impairment which makes higher policy limits available should treatment be necessary (e.g. post June 1, 2016, a new combined medical, rehabilitation and attendant care benefit of $1,000,000 available for life).

The applicant had a reduced GSC score of 12 in the ambulance on her way to the emergency room.  When she arrived at the emergency room her GCS fluctuated between 13 and 10.  Following intubation and sedation, 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 ranged from 7T to 2T during the air ambulance trip and in the emergency department at the trauma centre.

Intact relied on the opinion of Dr. Garry Moddel, a Neurologist, who attributed the GCS score of 7T to sedation and noted there was no evidence of neurological deficit.  The Tribunal held, however, that section 3.1(2)(d)(i) does not require an ongoing neurological deficit to qualify for catastrophic impairment designation.

The appellant relied on the opinion of Dr. Harold Becker, a General Practitioner, who concluded that a GCS score from an intubated patient is reliable.  The Tribunal accepted that the GCS scores below 9 were valid and then turned to the question of causation.

Dr. Becker noted that the applicant was hypovolemic from loss of blood and that her blood pressure was dropping which will result in decreased brain function and a lower GCS score.  Hospital records indicated that she was given massive blood transfusions at the trauma centre; however, her GCS continued to drop as she left the trauma centre for the operating room.  Indeed, the Tribunal noted that the applicant’s GCS scores fluctuated between 13 to 19 prior to her transfer to the trauma centre, which supported Dr. Becker’s opinion on the effects of the blood loss.

Therefore, in light of all the evidence, the Tribunal found the applicant’s brain impairment and lowered GCS scores were caused by her brain injury and hypovolaemia directly resulting from the accident.

Under the new LAT regime, the Tribunal’s ability to award costs has been severely restrained.  The Tribunal could find nothing unreasonable, frivolous, vexatious or bad faith about the manner in which the matter proceeded, nor was any such behaviour drawn to the Tribunal’s attention.  Accordingly no costs were ordered.

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