In a recent decision, the Ontario Court of Appeal placed significant limitations on the statutory definition of a catastrophic impairment as outlined in Ontario Regulation 461/96. This will affect both tort claims under the Bill 59 regime and statutory accident benefit claims arising from accidents since November 1, 1996.

In Liu v. 1226071 Ontario Inc. (July 17, 2009), the plaintiff sustained serious head injuries as a result of being struck by the defendant’s vehicle. At trial, one of the issues to be determined was whether Mr. Liu had sustained a catastrophic impairment. As this matter fell under the Bill 59 regime, a catastrophic impairment designation would entitle Mr. Liu to claim health care expenses (assessed at $865,000) from the defendant.

Mr. Liu’s post-accident Glasgow Coma Scale (“GCS”) scores formed a central part of the arguments made by both parties at trial and on appeal. The GCS score measures a person’s level of consciousness or awareness following trauma. The evidence led at trial revealed that Mr. Liu’s initial GCS score, taken 16 minutes after the accident, was 3 out of 15. By the time his GCS score was taken a second time, approximately 2 minutes later, his GCS score was 8. His GCS score was taken a third time, approximately 12 minutes later at which time it was 12. When he arrived at the hospital, it was taken a fourth time and was noted to be 14.

At the conclusion of trial, a motion was brought to determine whether Mr. Liu had suffered a catastrophic impairment within the meaning of section 267.5 of the Insurance Act. The trial judge made findings that Mr. Liu had suffered a brain impairment as a result of the accident and had a GCS of 9 or less within a reasonable time frame after the accident. Despite these findings, he concluded that Mr. Liu had not suffered a catastrophic impairment within the meaning of the Act, noting there were GCS scores greater than 9 less than 40 minutes after the accident. He also placed great emphasis on the fact that Mr. Liu had traveled to China on two occasions post-accident, having made all of his own arrangements. He further stated that there was no evidence led at trial that Mr. Liu was catastrophically impaired.

Mr. Liu appealed the decision. His argument was straightforward: the medical evidence established he suffered a brain impairment from the accident and he had at least one GCS score of 9 or less, taken within a reasonable time period post-accident. Mr. Liu relied upon section section 5(1)(e) of Ontario Regulation 461/96, which states that for the purposes of section 267.5 of the Insurance Act, a person has sustained a catastrophic impairment if he/she suffers a brain impairment which results in a score of 9 or less on the GCS administered within a reasonable period of time after the accident by a person trained for that purpose. As such, he met the definition of catastrophic impairment. Conversely, the defendant/respondent pointed to the GCS scores above 9, taken less than 40 minutes after the accident. Given the rising GCS scores, they argued that Mr. Liu had not sustained a catastrophic impairment.

Justice MacFarland, writing for the court, found that the trial judge’s ultimate finding was in error. She stated as follows:

The statutory scheme creates a bright line rule which is relatively easy to apply. This enhances the ability of those looking to the definition to know what injuries will and will not be considered catastrophic. Having the same definition for both no fault and third party liability claims avoids inconsistency. The ease with which the rule can be applied addresses an element of predictability which will facilitate the settlement of claims…it is a legal definition to be met by a claimant and not a medical test.

Applying the above reasoning, it mattered not to the Court of Appeal that there were GCS scores above 9 taken within a reasonable time period post-accident. It also did not matter if the plaintiff was capable of organizing, and taking, two trips to China. If Mr. Liu suffered a brain impairment and had one GCS reading of 9 or less within a reasonable period of time after the accident, he met the statutory definition. Justice MacFarland did caution, however, that a finding of catastrophic impairment did not automatically equate to entitlement, which would still have to be proven.

This decision greatly restricts the ability of an insurer to challenge a catastrophic impairment designation based upon the criteria relating to GCS scores. However, there may be defences that remain available.

Justice MacFarland stated that there was no issue that the tests were administered by persons trained for that purpose. The statutory definition requires this to be the case, the inference being that if the tests were administered by untrained persons, the results may be invalid or unreliable. It may thus be open to argue that if there are other factors that affect the validity of the test results, the GCS scores cannot be relied upon. While the court has addressed this issue in part in the past, it has not made any hard and fast rules on the use of extrinsic evidence in determining the validity of GCS scores in this respect. For example, in Holland v. Pilot Insurance (2004), the court rejected the insurer’s argument that the injured party’s intoxication made his GCS readings (which were below 9) unreliable and thus could not be used to determine catastrophic impairment. The plaintiff led medical evidence that the intoxication would have no effect on the GCS scores. The court accepted this evidence given the insurer’s experts could not definitively state how the GCS score would be affected, only that it would be.

If definitive evidence is led that outside factors, such as alcohol in the blood stream or post-accident intubation, have rendered the test results invalid or unreliable it may be difficult for a court to baldly rely upon these scores. Thus, while the area upon which these findings can be challenged is no doubt narrowing, there may still be an opportunity to defend against them if the proper evidence can be marshaled.