Last week, the Divisional Court released its decision in Security National v. Hodges, 2014 ONSC 3627.
This was a judicial review of a Financial Services Commission of Ontario Director’s Delegate decision. The respondent, Manos Hodges, was represented by Tammy Ring and Marc Flisfeder of the Lerners Personal Injury group. Mr. Hodges was seriously injured in a motor vehicle accident. Although an expert for the insurance company gave evidence that Mr. Hodges would have died if he was not intubated and medically sedated, the insurer argued that Mr. Hodges should not qualify for enhanced accident benefits. The Divisional Court found that the decision below was reasonable and confirmed that Mr. Hodges should be deemed catastrophically impaired and therefore entitled to enhanced benefits.
The main issue was whether Mr. Hodges had a valid Glasgow Coma Scale (GCS) score of 9 or less, in order to qualify for enhanced benefits under the Statutory Accident Benefits Schedule (SABS). The insurer argued that the score should only be considered valid if it resulted from a brain injury alone, without any contributing factors. The Court rejected this interpretation and drew a distinction between the use of the words “brain injury” and “brain impairment” in the SABS.
The Court held that the starting point is to determine if the accident caused a brain injury that is a reason for some brain impairment. There is no requirement under the SABS that the brain injury itself has to reduce a GCS score to 9 or less. It is 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. The Court explained that the legislature could not have intended that seriously injured individuals would fail to receive enhanced benefits simply because their GCS score was confounded by the severity of their other injuries or treatment.
The Court also rejected the insurer’s submission that GCS scores with no prognostic value should be discarded. This would turn a legal test into a medical test.
Finally, the insurer also argued that GCS scores were not recorded within a reasonable period of time after the accident. The Court disagreed and held that the question of whether the score was recorded within a reasonable period of time after an accident must be considered on a case by case basis. In this case, the Court confirmed that GCS scores of 9 or less were recorded within a reasonable period of time.
Lerners successfully represented Mr. Hodges at the initial arbitration, the Director’s Delegate appeal, and at the Divisional Court. The insurer has not yet indicated whether it will appeal to the Court of Appeal.