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.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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