On February 22, 2013, FSCO released its appeal decision in Hodges v. Security National. The applicant was represented by Tammy Ring and Marc Flisfeder from the Toronto office of Lerners LLP's personal injury group.
The applicant was the driver of a motorcycle which was involved in a head-on crash with a minivan on August 9, 2009. As a result of this accident, the applicant suffered numerous serious injuries including a closed head injury with left occipital subdural and subarachnoid bleed. The first Glasgow Coma Scale ("GCS") score was recorded as 11 at the scene of the accident. The applicant was transferred to hospital where he was administered consciousness lowering medications and intubated. The applicant was extubated on August 7, 2009. His GCS score continued to be monitored and was recorded hourly. On August 8, 2009, the GCS score was noted to be 9 between 11:00 hours and 15:00 hours. On August 10, 2009, the GCS fell to as low as 7.
The insurer argued that the GCS scores were invalid for a plethora of reasons, including that the applicant has been prescribed consciousness lowering medication and because his GCS scores were impacted to some degree by injuries other than his brain impairment. The insurer also argued that imaging tests should be used to determine whether an individual is catastrophically impaired, rather than the GCS test set out in the SABS. Finally, the insurer argued that the GCS test should only be considered valid if administered within 24 hours of the accident.
On May 22, 2012, Arbitrator William Renahan rejected the insurer's arguments, holding that the applicant suffered a catastrophic impairment within the meaning of section 2(1.2)(e)(i) of the Statutory Accident Benefits Schedule. The insurer appealed this ruling.
The two issues on appeal were whether the applicant had a valid GCS score of 9 or less, and whether the GCS score was recorded within a reasonable period of time after his car accident. Delegate Blackman rejected the insurer's arguments entirely and was critical of the fact that the insurer's written submissions made little reference to the relevant case law. In dismissing the appeal, Delegate Blackman set out 22 points that succinctly summarized the law on the application of GCS test in relation to the determination of catastrophic impairment.
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