Guarantee relied on expert opinions that there was no “ongoing” brain impairment, that the GCS score of 9 was “isolated” and that the GCS scored related “primarily” and “predominantly” to hemodynamic instability and/or hypoxemia. Guarantee also relied on the insertion of qualifying language into the relevant provision of the Schedule such as “ongoing”, “durable”, or “significant” before “brain impairment” or “solely” before “results in”. This is not in keeping with the rulings in both Liu and Young.
Many of M.M.’s assessors imported qualifying language into the Schedule, and based on that qualifying language, opined that she did not meet the subsection 2(1.1)(e)(i) criteria. Kaplan and Associates diagnosed a brain injury and agreed there was a GCS score of 9. They also were of the opinion that the brain injury contributed to the lower GCS. However, they discounted M.M.’s GCS score because they did not consider it to be directly and exclusively caused by the brain injury. They concluded that the brain impairment, the disrupted consciousness, was primarily caused by hemodynamic instability due to blood loss and not exclusively by M.M.’s brain injury.
Read Alan Shanoff column An Insurance Nightmare http://www.torontosun.com/2012/10/19/an-insurance-nightmare