August 11, 2014

SABS Update- The Magical Number 9: GCS Score Need Not Offer Prognostic Value According to Divisional Court

Security National Insurance Company v. Hodges [2014], O.N.S.C. 3627 (CanLII)

MVC 2009. On August 5, 2009 Mr. Hodges was injured in a motor vehicle collision. In the thirteen days following the collision, his Glasgow Coma Score (GCS) was recorded numerous times. Following surgery and removal of the tube from the trachea on August 9, 2009, Hodges’ GCS score fell to 9 on three consecutive occasions.

PRIOR PROCEEDINGS

Both the Arbitrator and the Director Delegate found the scores taken 4 days after the crash satisfied the legal test and qualified for a finding of catastrophic impairment within the meaning of the SABS.

Hodges’ impaired consciousness, as measured by the GCS scores, would not have occurred “but for” the brain impairment so causation was established. On Appeal, the Director’s Delegate specifically held that when determining a “reasonable time” the SABS do not require consideration of whether the score offers any prognostic value or are predictive as to the degree or level of ongoing or future brain impairment.

APPEAL TO THE DIVISIONAL COURT

On Appeal, the Insurer’s position was that the brain injury itself must cause a GCS score of 9 or less. It argued that the GCS scores of 9 may not have reflected a worsening brain injury but may have been a reflection of other factors including surgical recovery and medications. The Divisional Court held that this was not the correct interpretation of the Regulation which focuses on brain “impairment” not brain “injury”. There is no requirement that the brain injury by itself would have reduced a GCS score to 9 or less. It is sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment to make that person’s GCS score relevant. The Court affirmed that the GCS score is the determinative and conclusive measure with respect to the definition of catastrophic impairment.

The Divisional Court also disagreed with the Insurer’s position that the legislative intent is to ensure that GCS scores with no prognostic value should not be used to determine CAT impairment. That approach would turn a legal test into a medical test. The purpose of providing GCS scores as a proxy of measurement of injury is simply to weed out the weakest claims at an early stage. The legislature could not have intended that seriously injured individuals would fail to receive a catastrophic impairment designation simply because their GCS score was confounded by the severity of their other injuries or treatment.

IMPLICATIONS

The Regulation requires that the brain impairment be “in respect of an accident”, so the starting point is to determine whether the person sustained a brain injury that is a reason for some brain impairment. There is no requirement that the brain injury on its own would reduce a GCS score to 9 or less. Further, the Divisional Court agreed that the determination of what is a “reasonable period of time” is determined on a case by case basis. As long as the patient shows fluctuating consciousness, it is appropriate for the score to be recorded. This approach could be used to increase the “reasonable period” of time.

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