The GCS was incorporated into the SABS to establish a catastrophic threshold of brain impairment. To meet this threshold, a claimant must suffer a brain impairment that results in a GCS score of 9 or less within a reasonable time following the accident.
The GCS category was considered in two recent CAT applications- P.L.F.R. and Intact Insurance Company and Applicant and Gore Mutual Insurance Company. In both, the applicant sought a CAT designation based on a GCS score of 9 or less.
In P.L.F.R. and Intact, the applicant was injured in a multi-vehicle accident on October 2, 2015. She suffered life-threatening injuries including a subarachnoid haemorrhage and was airlifted to a major Toronto trauma centre for emergency surgery. Following the accident, emergency personnel recorded a series of GCS scores ranging from 13 down to 10 prior to arrival at the hospital. She was intubated for the surgery, after which she recorded several scores ranging from 7T to 2T, with the “T” indicating that verbal response could not be measured because of the endotracheal tube.
In Applicant and Gore Mutual, the 12-year old applicant was seriously injured in a car accident on December 20, 2014. His injuries included bruised lungs, a spleen injury, multiple rib fractures and spinal micro fractures. He also experienced significant concussion-like symptoms including somnolence, combativeness and some amnesia, and reported ongoing headaches, dizziness, fatigue and amnesia. As above, he required intubation prior to surgery, and recorded two 7T and three 8T scores on the GCS.
In both cases, the insurers took the position that the GCS scores did not qualify because they were a result of intubation, not a brain impairment.
P.L.F.R. and Intact
In this hearing, Intact argued that a subarachnoid hemorrhage is not a brain injury, because the bleeding occurs in the lining of the brain. It relied upon an expert report by Dr. Moddell, who expressed the opinion that the drop in GCS to 7T was a result of intubation and sedation. As there was no evidence of any neurological deficit, Dr. Modell concluded that the GCS score was not the result of a brain injury.
Vice-Chair Flude did not accept this opinion. First, Dr. Moddell failed to address the fact that the applicant’s GCS score fell from 7T to 5T then to 2T, indicating ongoing and increasing impairment. Second, it failed to distinguish between brain injury and brain impairment. The fact that the applicant ultimately recovered without ongoing neurological deficits was not relevant to this CAT application. A separate CAT threshold under the Glasgow Outcome Scale is used to evaluate ongoing brain injury.
In this case, the medical records documented a diminished response (with GCS scores of 13, 12, and 10 on the way to the hospital), which provided sufficient evidence that a brain impairment had occurred.
To determine whether the GCS scores were a result of the brain impairment, Vice-Chair Flude considered the evidence of Dr. Becker, the applicant’s expert. Dr. Becker noted that the applicant was hypovolemic (decreased volume of circulating blood) and that her blood pressure was dropping. He explained that hypovolemia will result in decreased brain function and a lower GCS score.
Although the applicant was given massive blood transfusions at the trauma centre, they had no effect on her GCS score. It continued to drop to 5T. As she left the trauma centre for the operating room she recorded a 2T.
The Vice-Chair observed that even with a full verbal response her score at that point would only have been 7, which still would have met the CAT threshold. He concluded that, while sedation undoubtedly had an effect, the applicant’s brain impairment and lowered GCS scores were a result of her brain impairment and hypovolemia. Therefore, the applicant was declared catastrophically impaired.
Applicant and Gore Mutual
For this hearing, the parties submitted Joint Briefs of Authorities and Medical Records. They also submitted an Agreed Statement of Facts that acknowledged: the applicant complained of headaches upon arrival at the hospital; he experienced concussion-like symptoms; and a CT scan of his head was negative.
The applicant referred to Liu v. 1226071 Ontario Inc., an Ontario Court of Appeal case that stated:
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.
As a result, based on Liu, and the Agreed Statement of Facts, the applicant argued that his 7T and 8T scores met the threshold for CAT.
The applicant also submitted that a broad interpretation in favour of an injured claimant was appropriate in keeping with the consumer protection goals of the no-fault regime. The SABs did not place restrictions on the GCS test threshold relating to the impact of intubation or medication. Therefore, it would be unfair to read such restrictions into the test.
Gore Mutual claimed that there was no evidence of brain injury or impairment, and further, that the test scores were invalid because of the intubation. But for the “T” rating, the applicant’s scores would not have met the CAT threshold, as the sub-9 scores were solely related to reduced oxygen levels, not brain impairment.
In support of this position, Gore Mutual relied upon a report by Dr. Hanna. He claimed that medication resulted in the lowered GCS scores and argued that the testing was completed by unqualified people, leading to inconsistencies. Dr. Hanna also expressed the opinion that when the verbal response is untestable for intubation, a maximum score of 5 should be recorded.
Adjudicator Bickley gave little weight to the Hanna report. She found that it was strongly biased in favour of Gore Mutual’s desired outcome. Dr. Hanna made extended references to case law, for example. Further, he offered no evidence in support of the opinion that “T” should equal a maximum score. It simply raised the applicant’s scores above CAT. Finally, Dr. Hanna’s report, crafted specifically for the hearing, ignored key facts that Gore Mutual had previously approved in the Agreed Statement of Facts. For example, its first expert, Dr. Farhadi, acknowledged that the applicant had “concussive-type symptoms with increased fatigues as well as headaches and photophobia” and that he experienced dizziness and “may have also sustained a concussion at the time of the subject accident”. Dr. Farhadi also noted that these symptoms contributed to the lowered GCS scores.
Similarly, Dr. Hanna’s claim that the GCS scores were invalidated by the intubation contradicted the case law submitted by Gore Mutual in the Joint Brief of Authorities. Repeatedly, courts and arbitrators have found that GCS scores remained valid despite the presence of confounding factors.
Adjudicator Bickley also endorsed the applicant’s position regarding the purpose of the SABS as consumer protection law and agreed that restrictions that prejudiced an injury victim generally should not be read into it.
Therefore, she found that the CAT threshold had been met.
Despite decisions like these, insurers continue to deny CAT based on GCS scores. This leads to long delays in treatment, attendant care and other necessary benefits. If you have been seriously injured in a car accident, and have questions relating to catastrophic impairment or other issues, please contact us for a free consultation. At Campisi LLP, we are experts in accident benefits claims, and operate our law firm, “Clients First, Excellence Always”. Put us to work for you.