Divisional Court Clarifies Law on Brain Injury and Catastrophic Impairments

October 15th, 2014 by

In Security National v. Hodges, the Ontario Divisional Court upheld a FSCO ruling which gave a broad and generous interpretation to the meaning of catastrophic impairment under the Statutory Accident Benefits Schedule. In doing so, it clarified the law in regards to the determination of when a brain injury will satisfy the test for a catastrophic impairment.

Under s.2(1.2)(e)(i) of the SABS,  a catastrophic impairment, in respect of a brain impairment, is one that “in respect of an accident, results in a score of 9 or less on the Glasgow Coma Scale […] according to a test administered within a reasonable period of time after the accident.” For ease of explanation, the Glasgow Coma Scale (GCS) is a neurological scale on which medical professionals can provide an objective means to measure the level of consciousness of a person by measuring eye, verbal and motor reactions to external stimuli. GCS scores range from 3 (deep unconsciousness) to 15 (full, alert consciousness).

The facts giving rise to the appeal are fairly straightforward. Mr. Hodges was involved in a motor vehicle accident near Goderich, Ontario, and was subsequently attended to by medical personnel. In the thirty minutes immediately after the accident, three GCS readings were taken, all of which showed a score of 11. After Mr. Hodges was sedated and intubated for transportation to the hospital, his GCS score dropped to 3. Within 12 hours, Mr. Hodges underwent nine hours of surgery for internal injuries and his score remained steady at 3. While in recovery the next day, Mr. Hodges’ GCS score had risen to 10, bringing him above the threshold for a catastrophic impairment. However, by the following day, his score had again dropped to 9 where it remained for some time. Finally, almost two weeks post-accident, Mr. Hodges GCS rose to 15, indicating no impairment of consciousness.

After his accident, Mr. Hodges applied for and received statutory benefits from the defendant insurer.  However, when he applied for additional benefits only available to those with a catastrophic impairment, his claim was denied.

At the initial FSCO arbitration, the defendant insurer forwarded two arguments. The first was that the analgesic drugs that were administered to Mr. Hodges while being intubated affected his consciousness, and thus the reading of 3 was unreliable. The second was that many of the tests were administered more than 24 hours after the accident, thus running afoul of the condition that the tests be given ‘within a reasonable period of time after the accident. Both were soundly rejected by the arbitrator, and judgment was given for the insured.

On appeal, Security argued that the intent of the Ontario legislature in drafting this section of the SABS was to ensure that a GCS that has no prognostic value should not be used to determine catastrophic impairment; essentially, if the test would not be accepted by the medical community, it should not be accepted in determining accident benefits. The Court rejected this, noting that such a position would turn a legal test into a medical test. The Court noted that the purpose of the test was to create a proxy measurement for injury to “simply weed out the weakest claims at an early stage” and to allow bona fide claimants to make a claim for accident benefits. In fact, satisfaction of the test doesn’t automatically result in benefits – claimants must still prove entitlement based on their medical condition.

The Divisional Court’s ruling is no doubt claimant-friendly. More so, as a judicial decision, the result is binding on all FSCO arbitrators in the province. While some insurers have claimed that the floodgates have been opened to spurious claims, this fear is likely unfounded. Only a small percentage of claimants claim catastrophic impairment benefits and an even smaller percentage are actually found to qualify. While this decision clears some of the red tape in determining a catastrophic impairment, it does little to expand entitlement beyond those who would have already qualified.


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