Last week the Licence Appeal Tribunal (LAT) released an important decision in favour of one of our clients that will help other severely injured accident victims. The LAT handles disputes whereby injured individuals have been denied accident benefits by their auto insurance companies.
Advocating for fairness: LAT decision gives accident victims greater authority
In this particular case, our firm applied to the LAT on behalf of our client, named only by her initials P.L.F.R., because Intact Insurance had denied she was catastrophically impaired.
The applicant suffered multiple life-threatening injuries when she was involved in a multi-vehicle collision on October 2, 2015. In particular, P.L.F.R. suffered from bleeding in the lining of her brain with a deep laceration to her scalp that left her skull exposed. She also sustained a number of pelvic fractures and a severe abdominal wound, which required her to be airlifted from a local hospital to a major trauma centre.
When P.L.F.R. was first found at the scene of the accident she had a GCS score of 12, which indicates a lowered level of consciousness. The GCS scale begins at 3, being the lowest, and goes up to 15, which should be a person's score on any given day. The GCS scale looks at whether an injured person, who may have hit their head, has open eyes, the ability to speak clearly and control over their movements. Each category receives a number up to a total of 15. By the time the applicant reached the local hospital she needed to be intubated. When a patient has been intubated their GCS score drops because the tube in their throat prevents them from speaking. After being intubated and receiving pain medication, P.L.F.R.'s GCS score began dropping and eventually reached the lowest level of consciousness, which is represented by a score of 3.
Our firm applied on P.L.F.R.'s behalf to be considered "catastrophically impaired" by Intact Insurance for the brain injury she suffered in the accident. The rules that govern motor vehicle accidents in Ontario allow an injured accident victim to receive increased insurance benefits where they have suffered a "catastrophic" injury. At the time of this accident, an injured individual could prove they had suffered a catastrophic brain impairment if the following four questions could be answered with a 'yes':
1. Did the applicant suffer a brain impairment as a result of the accident?
2. Did the brain impairment result in a GCS score of 9 or less?
3. Was the GCS test administered within a reasonable time following the accident?
4. Was the GCS test administered by a person qualified to do so?
While there are four questions listed above, only number one and two were considered at the LAT hearing. The answers to the remaining questions were agreed to by both sides prior to the hearing.
In deciding in favour of P.L.F.R., the LAT arbitrator, Vice-Chair Flude, concluded that the applicant had suffered a brain impairment as a result of the accident. He found that bleeding in the lining of the brain coupled with a lowered level of consciousness was indicative of a brain impairment.
Vice-Chair Flude also decided that the applicant's brain impairment caused her lowered level of consciousness, which was indicated by a GCS score of 9 or less. Intact Insurance had argued that the Applicant's GCS score only dropped below 10 because she was intubated and sedated. However, Vice-Chair Flude concluded that the medical evidence established that P.L.F.R.'s level of consciousness continued to drop because of blood loss and not solely because of medications or her inability to speak due to intubation.
This case is important to injured accident victims because insurance companies have consistently argued that an intubated patient cannot be designated catastrophically impaired based on their lowered GCS score. This decision gives accident victims greater authority to push for catastrophic benefit levels where they suffered a head injury and were intubated due to the severity of their injuries.
Written by Jessica Stansfield, Gluckstein Lawyers, Toronto, Ontario
LINKS »
» http://otlablog.com/16-000145-aabs-lat/
» https://www.gluckstein.com/Motor-Vehicle-Litigation/
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