In a recent decision of the Licence Appeal Tribunal, E.W. v Primmum Insurance Company, the applicant, E.W. had been seriously injured in a single vehicle collision while under the influence of alcohol. He suffered extensive orthopedic injuries requiring ongoing rehabilitation to the point that he exhausted his monetary limits under the Statutory Accident Benefits Schedule (SABS). As a result, he applied for a determination of Catastrophic Impairment (CAT), which if accepted, would provide greatly enhanced medical benefits.
Immediate grounds for a CAT determination exist where an insured suffers a brain impairment that results in a score of 9 or less on a test of cognition known as the Glasgow Coma Scale (GCS) within a reasonable time after the accident. E.W. based his CAT application entirely upon a GCS of 8T recorded immediately following his surgery.
Primmum argued that there was no evidence of a brain impairment, and therefore the 8T GCS score did not meet the CAT definition in the SABS.
Vice-Chair Flude reviewed the relevant facts in the claim. On May 3, 2015 E.W. 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 E.W. communicated with them but seemed somewhat confused. They applied the GCS to determine his level of mental impairment and marked him as 13 out of a maximum score of 15. Throughout the next several hours while E.W. was extracted from the crashed car and transported by air ambulance to a Toronto trauma centre his GCS score never dropped below 13. On arrival at the trauma centre in Toronto, his score was 15.
E.W. sustained major injuries in the collision, including 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 surgery, E.W. was intubated and sedated. Following the operation, he 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.
Regarding the issue of whether he had suffered a brain impairment that led to the 8T score, E.W. had presented evidence indicating that he suffered from post-concussion syndrome. He argued that he had suffered the initial concussion from the collision which proved a brain impairment.
Vice-Chair Flude first distinguished between brain injury and brain impairment before rejecting E.W.’s possible post-concussion syndrome as irrelevant to the GCS CAT criteria. If in fact E.W. had suffered a concussion at the time, any evidence of brain impairment from it did not warrant a finding of GCS CAT. Following the collision, E.W. appeared confused. However, given his state of intoxication at the scene, alcohol was the more likely source of brain impairment identified by the lowered GCS score.
Prior to undergoing surgery, E.W. exhibited no signs of brain impairment. Vice-Chair Flude concluded that the readings of 8T and 9T in the intensive care recovery unit were not the result of brain impairment but the effects of anaesthesia and intubation while E.W. was recovering from the operation. Therefore, the application was dismissed.
If you have suffered brain impairment or other serious injuries in a motor vehicle accident, please do not hesitate to contact us for a free consultation. At Campisi LLP, we are experts in Accident Benefits claims and will fight to make sure you receive the benefits you need for your recovery. “Clients First, Excellence Always” is not just our motto, it is the foundation of our law practice and our promise to you.