The level of benefits available to a person injured as a result of a motor vehicle accident substantially increases if the injured party is determined to have suffered a Catastrophic Impairment.
Under Section 2(1.2)(e)(i) of the Statutory Accident Benefits Schedule (SABS) an individual may be deemed to have met the “Catastrophic Definition” if they have received a score of 9 or less on the Glasgow Coma Scale (GCS), if the test was “administered within a reasonable period of time after the accident” and if the test is “performed by a person trained for that purpose”.
One of the seminal decisions considering the definition of catastrophic is Desbiens v. Mordini[i] a decision of Justice Spiegel of the Ontario Superior Court. In Desbiens, the Court commented that:
the legislature’s definition of "catastrophic impairment" is intended to foster fairness for victims of motor vehicle accidents and ensure that victims with the greatest health needs have access to expanded medical and rehabilitation benefits
The GCS is often used to measure the severity of a head injury following an accident. There have been several cases dealing with catastrophic impairment based on a GCS rating of 9 or less. Many of these cases consider the impact of sedating drugs and intubation and the effect those medical interventions have on the injured person and their GCS rating.
In the recent decision of Mallat v. Personal Insurance Co. of Canada[ii], the insured applied for a catastrophic impairment designation after a vehicle crossed into her lane and hit her vehicle head on. As a result she suffered multiple serious injuries, including a closed head injury. The insurer denied her application and relied on their experts’ findings that the GCS scores were recorded after sedation and intubation and were therefore invalid, or were attributable to medications given to the insured for anesthesia.
Following the collision the insured was trapped in her vehicle under the dashboard for 30 minutes prior to extrication. It was noted that the insured had a brief loss of consciousness before the first GCS was administered at 2:55 p.m. with a score of 15. While being transported by air ambulance, the insured was administered Fentanyl for pain three times and a GCS was also administered three times with a score of 15 each time. Upon arrival at the hospital at 4:00 p.m., her GCS score was 13. It was recorded prior to a number of assessments including a CT scan of the brain, insertion of a chest tube in her collapsed lung and emergency surgery for her orthopedic injuries. A GCS test at 5:30 was 13, approximately 10 minutes after the drug Propofol had been administered three times within a period of 20 minutes. Following a 3 ½ hour surgery for orthopedic injuries it was noted she did not respond easily to verbal or tactile stimulation. At 4:00 a.m. while in the Trauma Observation Unit she was administered a GCS test and scored 8 on two occasions. Over the next two days, her scores rebounded to a range between 11 and 15.
The first issue the Arbitrator considered was whether the insured received a valid and accurate GCS score. The Arbitrator gave little, if any, weight to the opinion of the Insurer’s expert that intubation and medications administered for the purposes of surgery invalidated the insured’s GCS score of 8. The Arbitrator found that it could reasonably be inferred that the properly trained individual administering the GCS test was not only aware that the insured had been given Propofol 10 minutes before the GCS test, but was also aware that the drug, which is fast acting and leaves the system quickly, would not interfere with a valid and accurate GCS test score. Likewise, the Arbitrator also found that the expert should have been aware that the drug Fentanyl, when administered intravenously, leaves the system within a half hour to one hour. The Insurer’s expert also ignored that the insured was no longer intubated after surgery. The Arbitrator found that the lower GCS score was not due to the effects of medication administered to induce anesthesia but rather, arose as a result of a traumatic brain impairment.
The second issue was whether the GCS test was administered within a reasonable period of time. The Arbitrator concluded that it was not a question of how early or how late the GCS test was administered after the accident, but whether it was administered within a reasonable period of time after the accident in relation to the facts of the particular accident. The Arbitrator found that based on the facts of this very serious car accident, with its multiple emergency procedures, a valid GCS test with a score of 8 was “administered within a reasonable period of time after the accident” and was as a result of the brain impairment suffered from the motor vehicle collision. The Arbitrator concluded that pursuant to paragraph 2(1.2)(e)(i) of the SABS, the insured suffered a catastrophic impairment.
As seen in this recent FSCO decision, the clinical findings by health care professionals are integral to the process of evaluating whether an individual has sustained a catastrophic impairment. However, this decision is a continuing example of how insurers are routinely denying accident benefits to the most seriously injured car accident victims. As a result, people need a lawyer to assist them in accessing the treatment they need now more than ever.
[i]  CanLII 4121O (ON S.C.).
[ii] 2011 CarswellOnt 15122 (FSCO).