Automobile Injury Appeal Commission Province of Saskatchewan

Transcription

1 Province of Saskatchewan Citation: A.N. v. Saskatchewan Government Insurance, 2016 SKAIA 034 Date: File: 061 of 2015 BETWEEN A.N., Appellant and Saskatchewan Government Insurance, Respondent Appearances: A.N., Appellant Lynn Barlage, for the Respondent Before: Tim Rickard, Chair Dr. Barry Heath, Commission Member Joni MacKay, Commission Member THIS DECISION HAS BEEN EDITED TO PROTECT THE PERSONAL AND HEALTH INFORMATION OF INDIVIDUALS BY REMOVING PERSONAL IDENTIFIERS AND OTHER IDENTIFYING INFORMATION. Heard at Regina, Saskatchewan May 31, 2016

2 Page 2 DECISION [1] The Appellant was injured in a Motor Vehicle Accident (MVA) in January 10, As a result she received benefits under Part VIII - the no fault provisions of The Automobile Accident Insurance Act (the Act). [2] The Appellant appealed an April 9, 2015 SGI decision letter which determined the Appellant was not entitled to a Permanent Impairment Benefit (PIB) for a concussion. In arriving at its decision SGI relied on an opinion from [SGI Medical Consultant], a medical consultant. [SGI Medical Consultant] s March 31, 2015 opinion letter indicated that: ISSUE Based on the emergency room report there is no evidence of loss of consciousness or post-traumatic amnesia following the MVA in question. Therefore, criteria for entitlement to a permanent impairment rating for a concussion as set down in Appendix B of SGI s Regulations, Division 2, Subdivision 1, Part 1.1 have not been met. Is the Appellant entitled to a PIB for a concussion? FACTS AND FINDINGS [3] During a blizzard on January 10, 2013, the Appellant was the driver of an eastbound vehicle attempting to make a left hand turn at an intersection when her vehicle was hit on the passenger side by a westbound black truck. [4] The Appellant testified that she remembers hitting the black truck and waking up in a snowbank. [5] The Appellant stated she lost consciousness when her vehicle spun around after hitting the black truck. She has no recollection of her vehicle spinning around after the collision. [6] No ambulance was called to the scene of the MVA. At her mother s urging, the Appellant attended at the hospital outpatient/emergency department the next day. The report from the outpatient/emergency department dated January 11, 2013 noted no loss of

3 Page 3 consciousness. The diagnosis was concussion. No medication, tests or treatment were ordered. [7] The Appellant did not seek any further medical treatment for the injuries she sustained in the MVA. She did not miss any work as a result of the injuries sustained in the MVA. [8] The Appellant testified she had trouble remembering things and was confused for a few days after the MVA. [9] The Appellant completed an Application for Injury Benefits on March 29, She stated her most severe injury was a concussion. She described her symptoms as a result of the MVA as: Whiplash. Sore neck + couldn t turn head. Trouble sleeping, getting confused, short term memory loss. She indicated she lost consciousness after the MVA for a period: Less than 30 minutes. Appellant s Position [10] The Appellant argued she was entitled to a PIB for her concussion as she was diagnosed with a concussion by a doctor a day after the collision and she lost consciousness as a result of the MVA. [11] The Appellant argued that it was not possible for her loss of consciousness to be documented by health-care practitioners as they were not present at the accident scene. SGI s Position [12] Counsel for SGI argued that as there was no documentation of loss of consciousness or amnesia by a medical practitioner within 48 hours of the MVA, the Appellant does not meet the criteria under the Regulations for entitlement to a PIB under s. 1.1 of the Act. LAW AND ANALYSIS Relevant Legislation The Automobile Accident Insurance Act

4 Page 4 Permanent impairment benefit 152 Subject to this Division and the regulations, an insured who suffers a permanent impairment because of the accident is entitled to a lump sum benefit for the permanent impairment. The Personal Injury Benefits Regulations The relevant section of the Regulations is Appendix B, Division 2 Subdivision 1, Part 1, section 1.1: Part 1: Alteration of Brain Tissue or Function 1.1 Cerebral concussion or contusion as documented by health-care practitioner in first 48 hours: (a) Minor (post-traumatic amnesia (PTA) <30 min or loss of consciousness (LOC) <5 min) % (b) Moderate (PTA >30 min <24 hrs or LOC >5 min <1 hr.)... 2% (c) Severe (>24 hrs of (PTA) or >1 hr (LOC))... 5% (d) Post-concussion syndrome, see Parts 4.6, 4.7 and 4.8 ANALYSIS [13] In order to qualify for a PIB pursuant to the Regulations, as indicated, there must be documentation by a health care practitioner within 48 hours of the MVA of a loss of consciousness or documentation of post-traumatic amnesia. [14] The only medical documentation of the Appellant s MVA injuries was a report from the outpatient/emergency department dated January 11, 2013, which diagnosed a concussion with no loss of consciousness. [15] We accept the opinion of [SGI Medical Consultant], which is supported by the report from the outpatient/emergency department that there was no documented loss of consciousness or post-traumatic amnesia within the first 48 hours of the MVA. [16] The Appellant argued that it was not her fault her loss of consciousness was not documented by a health care practitioner as none was present at the accident scene. Our role is not to change the Act or Regulations, but rather to apply the Act and Regulations to various cases. As indicated, in this case, the outpatient/emergency department report does not support the Appellant s assertion that she had a loss of consciousness. CONCLUSION

5 Page 5 [17] We have accepted the opinion of [SGI Medical Consultant] that the Appellant is not entitled to a PIB for a concussion as there was no documentation by a medical practitioner of loss of consciousness or post-traumatic amnesia as required under the Regulations. COSTS [18] As the Appellant has not been successful in her appeal, there is no order as to costs. Dated at Regina, Saskatchewan, on July 26, Tim Rickard, Chair Dr. Barry Heath, Commission Member Joni MacKay, Commission Member