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A Review of F.S.C.O.’s recent decision in Security National Insurance Co./ Monnex Insurance Management Inc. v. Hodges

At issue in Hodges, was whether the injured person had sustained an injury properly classified as catastrophic pursuant to section 2(1.2)(e)(i) of the Statutory Accident Benefits Schedule (“SABS”).1 Also at issue was whether Mr. Hodges’ GCS score, taken on the fourth day following the accident, was taken, “within a reasonable period of time after the accident”, as required by the SABS.

Section 2(1.2)(e)(i) states that an injured person’s injuries meet the definition of catastrophic impairment if, as a result of a motor vehicle accident, they have sustained:

(e) subject to subsection (1.4)2, brain impairment that, in respect of an accident, results in,

(i) a score of 9 or less on the Glasgow Coma Scale, as published in Jennett, B. and Teasdale, G., Management of Head Injuries, Contemporary Neurology Series, Volume 20, F.A. Davis Company, Philadelphia, 19813, according to a test administered within a reasonable period of time after the accident by a person trained for that purpose…

Mr. Hodges was involved in a serious motor vehicle collision at about 10:50 p.m. on August 5, 2009. Mr. Hodges’ injuries included a traumatic brain injury, chest injuries, a torn diaphragm, lacerated liver and leg fractures. His GCS was tested by ambulance attendants within minutes of the collision. His GCS score at that time was 11 out of 15. Mr. Hodges was airlifted to London Health Sciences Centre. He was combative and flailing en route to hospital. He was intubated and medically paralyzed.4

Mr. Hodges was admitted to hospital for intensive treatment. At 2:00, 3:00 and 4:00 a.m. on August 9, 2009, his GCS score was 9. During this period, he was on sedatives and pain killers that had the side effect of reducing his level of consciousness.

At arbitration, Mr. Hodges argued that the GCS testing had been administered within a reasonable period of the accident pursuant to the SABS. The insurer disagreed.

In a Decision on a Preliminary Issue, Arbitrator W.J. Renahan finds that the GCS test is not a scientifically precise measurement of one’s level of consciousness. Therefore, he is not required by the legislation to question the validity of a GCS score because of unusual complicating factors which might affect the GCS score of a patient like Mr. Hodges. Arbitrator Renahan states: The (SABS) definition does not refer to ‘serious traumatic impairment of brain function’, but simply ‘brain impairment’ resulting in a GCS score of nine or less. … A brain impairment need not be the only or sole cause of a GCS score of nine or less, with no contributing factors. … If the impaired consciousness measured by the GCS score would not have occurred but for the impairment, then causation is established.

The insurer argued that a GCS score taken on the fourth day after the accident was not taken within a “reasonable time” of the accident. On this issue, Arbitrator Renaham states: The decision to take GCS scores is a medical decision. One of the reasons GCS scores are taken is to use a simple procedure to determine whether a patient’s level of consciousness, and therefore his brain injury, is improving or deteriorating. … It was reasonable to employ the GCS test as a simple procedure to determine whether the area of bleeding (on Mr. Hodge’s brain) had shrunk or grown until the doctors were satisfied that the risk of further bleeding had stopped. 

Arbitrator Renahan finds that Mr. Hodges is catastrophically injured pursuant to section 2(1.2)(e)(i) of the SABS. He also finds that administering the GCS test on the fourth day following the accident was within a reasonable period of time after the accident.

Emily Foreman is a Partner at Siskinds, LLP. She practices exclusively in the area of personal injury litigation. If you have questions about your legal rights please contact Emily Foreman at [email protected], or call 519.660.7822 for a free consultation.

1 The Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.

2 (1.4) – For the purposes of clauses (1.2) (e), (f) and (g), an impairment sustained in an accident by an insured person described in subsection (1.3) that can reasonably be believed to be a catastrophic impairment shall be deemed to be the impairment that is most analogous to the impairment referred to in clause (1.2) (e), (f) or (g), after taking into consideration the developmental implications of the impairment. O. Reg. 281/03, s. 1 (5).

3 Hereinafter “GCS”.

4 At that time his GCS score was 3, but was “untestable” due to these factors.

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