Security National Company v. Hodges

Security National Company v. Hodges

Introduction

In “Security National Company v. Hodges, 2014 ONSC 3627,” Security National Insurance is seeking judicial review of a decision from the Director’s Delegate of the Financial Services Commission of Ontario that was dated February 22, 2013. They believe that the delegate upheld on arbitrator’s decision that the respondent suffered a “catastrophic impairment” as set out in Statutory Accidents Benefit Schedule.

Issues

Whether the Director’s Delegate misapprehends the evidence of Dr. Berry applied an incorrect legal test of erred in law?

Whether the test was administrated within a reasonable time after the accident, according to the SABS regulations s.(1.2)(e)(i), of O,Reg 403/96 that provides catastrophic impairment in respect of an accident?

Facts

On August 5th 2009, Mr. Hodges was injured in a motor vehicle around 11:00pm near Godericham Ontario. His Glasgow Coma score was recorded many times in the following 13 days. In the early morning hours of August 6th, Mr. Hodges underwent extensive surgery lasting more than 9 hours for injuries to his diaphragm, liver and legs; his score then was 3 or T3. Since this score is a judicial review application, these readings are not relied upon. After the surgery he was being administrated analgesic medication as an adjunct to the general anesthetics for the surgery and he remained intubated. Later on August 7th, at 4:30pm the GCS score had risen to 10, and this score also didn’t satisfy the legal test. When the second CT scan was performed, it indicated that there was some improvement in brain bleeding that had been first detected on his admission to the hospital August 6th. The arbitrator and Director’s delegate found that the score of T9 on August 9th were the qualifiers for finding catastrophic impairment within meaning of the SABS. Moreover, the hospital continued to monitor his GCS score, until August 18th with varying results. His last score was August 18th was 15, indicating impairment of consciousness, and the third CT Scan on August 10th, showed some improvement with the brain bleeding.

Although, Mr. Hodges received statutory accident benefits under the SABS from his insurer, security National, he applied to Security National claiming that he suffered a “catastrophic impairment” which would entitle him to apply for enhanced accident benefits on October 14th 2009. Mr. Hodges application was denied, resulting from an unsuccessful mediation. This issue proceed to a hearing before the Arbitrator of the Financial Services Commission. At the attribution, the Arbitrator focused on the issue of whether his GCS score of 9 or less was because of his brain impairment, according to the test that was administrated within a reasonable time after the accident.

Dr. Henry Berry, a neurologist, was retained by Security National, expert on the treatment of brain injury to give evidence on Mr. Hodges application. He said, MRI and CT scans are better prognostic tools to scientifically determine brain impairment after the first 24 hours after the initial injury. Dr. Berry also testified that 55hr post-accident is not a “reasonable period” to accept GCS score as indicative of the severity of Mr. Hodges brain impairment. Lastly, he also added that the three GCS scores of 9 on August 9th were probably not reflection of Mr. Hodges level of brain injury but attributable to 10 other factors influencing his post-surgical recovery.

Mr. Hodges then retained Dr. Harold Becker, a family doctor with expertise in catastrophic assessment, to give evidence to the arbitrator. However, Dr. Becker was under the impression that the brain injury detected in the first CT scan at the hospital caused or contributed to the GCS score of 9 on August 9th.

At the end of the trail, the arbitrator concluded that GCS score of 9 on August 9th, 2009 satisfied the legal test; and his reasons as follows:

  1.  He heard no reliable evidence of how much conscious lowering medication was in Mr. Hodges’ body at the time the GCS scores were taken or precisely how that medicine would affect his score;
  2.  Both doctors testified that studies have shown that different medical practitioners can score the same patient within a range of 2;
  3. The GCS test is not a scientifically precise measurement of consciousness levels;
  4. He was not required to question the validity of the score based upon normal or usual complicating factors (such as other injuries or treatment) that would affect a GCS score of a patient like Mr. Hodges.

Security National wasn’t satisfied with the Arbitrator’s decision. So they appealed the decision, to the Director’s Delegate. The Director Delegate confirmed the Arbitrator’s decision.

Analysis

The essence of Dr. Berry’s evidence that security National relies on for this application is that the scores of 9 recorded at 2-3am and 4am on August 9, 2009 are not a reflection of Mr. Hodges’ level because the August 6th, 2009 reveals only a small hemorrhage and contusion “a mild but definite physical brain injury”. The rise of GCS score of 12-14, could be result of the brain injury. According to Dr.Berry, four or five days following the accidents is not reasonable period within which to accept a GCS score as indicative of a catastrophic brain injury because by the time the diagnostic scans make it clear that Mr. Hodges delayed recovery was not the result of worsening brain injury and must be therefore attribute to his other injuries and their treatment including surgery and medication. And Dr. Becker agreed that the medications used to treat Mr. Hodges could have contributed to a lower GCS.

The Director’s Delegate held that if Mr. Hodges impaired consciousness, as measured by GCS score, would not have occurred “but for” the brain impairment then causation is established. Alternatively if brain impairment materially contributed to the GCS score causation is established. The Director’s Delegate specifically held that when determining a “reasonable time” in any particular case of the SABS do not require consideration of whether the score offers any prognostic value or are predictive as to the degree or level of ongoing or future brain impairment.

The underlying assumption of Security National’s position is that a brain injury itself must cause GCS score or less, isn’t right. The regulation actually focuses on measuring brain impairment, not brain injury, and it uses GCS score as the determinative measure. So it’s sufficient that the person claiming catastrophic impairment had any brain injury causing any impairment to make that person’s GCS score relevant for the purposes of the definition in the SABS.

They agreed with the Director’s Delegate decision because that an inquiry into the patient’s prognosis or the seriousness of the actual brain injury is irrelevant for the purposes of the SABS, and that the GCS score is important for that determination.

The judge believes that the Security National’s attempt to blame the legislation isn’t acceptable. They believe that the threshold of the test in the SAMS is simply to allow a person to make a claim for enhanced benefits. It does not ensure that the person will qualify for addition benefits. And that in order for the person to succeed, the person will still need to show entitlement based upon his or her subsequent medical condition and the degree of impairment sustained. Therefore, the legislature could not have intended that seriously injured individuals would fail to receive a catastrophic impairment designation simply because their GCS score was confounded by the severity of their other injuries or treatment.

Conclusion

The question of what is a “reasonable period of time” is determined on a case-by-case basis. Even Dr. Berry agreed that as long as the patient is showing fluctuating consciousness his or her GCS scores should be recorded, as they were in this case. The GCS scores of August 9th were recorded eight or nine days before GCS scoring was terminated. Therefore the determination of that factual issue in this case was reasonable. In their view, neither the Arbitrator nor the Director’s Delegate misapprehended the evidence of Dr. Berry, applied an incorrect legal test or otherwise erred in law. The application for judicial review is dismissed, and is ordered to a cost of $12,000.00 to be paid to the successful party.

Jasintha Kunasegaram is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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