The case of Z.R. & A.R. vs. Certas Direct Insurance Company, 2020 ONLAT is a recent LAT decision of importance when considering catastrophic impairments in children. The unfortunate circumstances of the case arise in 2016, when a 13 year old boy was stuck by a vehicle when out trick or treating on Halloween.

He was immediately transported to Sick Kids Children’s Hospital, where he remained for approximately 8 days owing to a fractured right femur. A CT scan of his head was taken and found to be normal, with the report noting no acute intracranial findings.  A progress note shortly before his discharge from Sick Kids indicated that the applicant reported a “little” headache.  He was not referred to a neurosurgeon, neurologist, or neuropsychologist while at Sick Kids and no concerns were raised with respect to a possible brain injury.

Nearly three weeks post-accident, on November 21, 2016, the applicant was admitted to the Holland Bloorview Kids Rehabilitation Hospital on an outpatient basis. Admission notes confirm that the CT scan of the applicant’s head was normal but noted that the applicant was dealing with some light and noise sensitivity and that he may have sustained a concussion.  The Progress Note of Dr. Ladha, dated November 25, 2016, indicated that the applicant reported more frequent headaches with some light and noise sensitivity, fogginess and nausea.

The applicant completed his outpatient day program at Holland Bloorview on December 31, 2016.  Dr. Ladha’s discharge summary indicated that the applicant described his headaches and sound sensitivity as resolved. He was tolerating schoolwork well and was having tutoring outside his day program at Holland Bloorview. Dr. Ladha indicated that the applicant’s concussion was much improved and expected that the applicant’s symptoms would resolve with no long-term difficulties.

On February 22, 2017, the applicant had an MRI and a SPECT scan conducted at the Southlake Regional Health Centre.  The MRI indicated that there was no acute intracranial mass haemorrhage or infarct.  According to Dr. Siow, Director of Nuclear Medicine at Southlake, the SPECT scan demonstrated that the applicant suffered a previous traumatic brain injury.  Dr. Siow completed an OCF-19 indicating that, pursuant to section 3.1(1) 5.i of the Schedule, the applicant was catastrophically impaired based on a traumatic brain injury.  Certas referred the OCF-19 to Dr. Cheung, radiologist, for a paper review.  Dr. Cheung concluded that the SPECT scan findings are non-specific.  By way of an Explanation of Benefits, Certas informed the applicant that it had determined that the applicant did not sustain a catastrophic impairment as defined by the Schedule.

The Schedule outlines the following when considering a traumatic injury in children:

3.1 (1) For the purposes of this Regulation, an impairment is a catastrophic impairment if an insured person sustains the impairment in an accident that occurs on or after June 1, 2016 and the impairment results in any of the following:

5. If the insured person was under 18 years of age at the time of the accident, a traumatic brain injury that meets one of the following criteria:

i. The insured person is accepted for admission, on an in-patient basis, to a public hospital named in a Guideline with positive findings on a computerized axial tomography scan, a magnetic resonance imaging or any other medically recognized brain diagnostic technology indicating intracranial pathology that is a result of the accident, including, but not limited to, intracranial contusions or haemorrhages, diffuse axonal injury, cerebral edema, midline shift or pneumocephaly (Emphasis Added).

The dispute thus hinged on the interpretation of ‘with’ in the above definition to determine whether the applicant sustained a traumatic brain injury.

The applicant submitted that he met all three criteria of the test and that there is no temporal requirement that the criteria be met simultaneously.  He was admitted on an in-patient basis to Sick Kids on October 31, 2016, which is a public hospital named in a Guideline.  The SPECT scan completed on February 22, 2017, revealed a positive finding indicating intracranial pathology and the SPECT scan is a medically recognized brain diagnostic technology.

Certas submitted that the applicant did not met the test for catastrophic impairment for the following reasons.  First, although Certas conceded that the applicant was admitted on an in-patient basis to a public hospital named in a Guideline, it was not because he had a positive finding indicating intracranial pathology but because he had a fractured femur.  Second, Certas submitted that the positive finding indicating intracranial pathology must be conducted while an in-patient in the hospital.  In this case, the respondent submits that the only positive finding indicating intracranial pathology came from Dr. Siow’s evidence with respect to what the SPECT scan revealed but that that was not completed until February 22, 2017 which was well after the applicant was discharged from Sick Kids.

In analyzing the amendments to the Schedule and definitions of the word ‘with’, Adjudicator Gosio was persuaded by Certas’s argument, finding that the word “with” requires that an applicant must have a positive finding on one of the tests outlined while being an in-patient in the hospital. 

Adjudicator Gosio noted that a plain reading of the section, while keeping in mind the intentions of the legislature, supports this finding.  The legislature’s use of the word “with” denotes a temporal association or connection between a person’s admission to a hospital on an in-patient basis and a positive finding on one of the appropriate tests outlined.  If the legislature had intended a different interpretation, it could have used the words “in addition to” or “and” instead of the word “with”. 

As such, Adjudicator Gosio found that the “interpretation is consistent with this intention and as such, I find that the section would generally require an injured person to have a positive finding on one of the tests outlined while an in-patient at the hospital.”

For this reason, Adjudicator Gosio found that the applicant was not catastrophically impaired as defined by section 3.1(1) 5.i of the Schedule. This did not mean that the applicant would never be found catastrophically impaired. Rather, he may still meet the definition of a catastrophic impairment at some later stage under a different definition.

For takeaway purposes, this case illustrates the lengths the LAT will go to determine definitions of words that strike the heart of an issue. As a result, delayed SPECT scans were not enough to demonstrate a traumatic brain injury in this case or causal link to meet the definition in the Schedule.

If you have a question about this decision or a similar file, please contact Eric Grossman at 416-777-5222