A recent decision by the Divisional
Court in Ontario provides a plaintiff-friendly interpretation of the test for
catastrophic impairment under the SABS.
In Security National
Insurance Co. v Hodges, 2014
ONSC 3627 (Div. Ct.), GCS scored administered within 30 minutes of the accident were 11. He underwent surgery the day after the accident and scores fell to 3 while he was intubated, but rose to 10 once the trachea was removed. Roughly three
days following the accident – and while still under the influence of medication
– several GCS tests were administered and resulted in scores of 9. MRI and CT
scans done at the time suggested that, while Mr. Hodges had suffered a brain
injury from the accident, the extent of the injury was quite limited. GCS tests
administered over the following days showed continuing improvement and the
final GCS test indicated no impairment in consciousness.
The insurer denied the plaintiff's application for catastrophic impairment. The arbitrator
found that the plaintiff met the test for catastrophic impairment and
this finding was affirmed under appeal to FSCO. The insurer appealed to the Divisional Court.
In upholding the FSCO decision, the
Divisional Court stated that what constitutes a reasonable period of time to
conduct the GCS test should be determined on a case-by-case basis. It found
that, in this case, the test was conducted within a reasonable period of time,
given that the injured individual was still experiencing fluctuating levels of
consciousness at the time of the test. The court rejected the argument that the
GCS score had to have “prognostic value,” saying that this would turn the legal
test for catastrophic impairment into a medical test. The court also rejected
the argument that the statute required that the brain injury be the sole cause
of the score of 9 or less, saying: “It is sufficient that the person
claiming catastrophic impairment had any brain injury causing any
impairment….”
It will be interesting to see if Hodges results in a greater number of applications for a CAT designation. Of course, the claimant still needs to show entitlement to benefits even if successful.
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