Adjudicators Still Grappling with Rating System

In Allen and Security National, Appeal P15-00018 (which is available for review here) Director’s Delegate Lawrence Blackman answered a critical question arising in the complicated world of catastrophic impairment calculations when determining whether a claimant has suffered a whole person impairment of 55% or more:  How do you rate overlapping impairments?

The Case

I represented Miguel Allen at the initial arbitration conducted before ADR Chambers Arbitrator Alan Smith, FSCO A12-003800, (whose decision can be found here), where I had the dubious distinction of securing a finding that Mr. Allen suffered from 52% whole person impairment.  With a 53% whole person impairment being rounded up to 55%, in accordance with the methodology of the AMA Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (“the Guides“), a finding of 52% whole person impairment was a spectacular near-miss.  

Both the arbitration and the appeal decisions focussed on the appropriate rating methodology when dealing with overlapping impairments.  In Mr. Allen’s case, the specific overlap related to his rating for emotional and behaviour impairments due to psychological malaise and his rating for the physical head injury he sustained which also caused, among other things, altered psychological responses such as agitation and irritation.  

The appeal was framed by Director’s Delegate Blackman in these terms:

A significant issue in this catastrophic impairment appeal concerns an insured person injured in a motor vehicle accident who suffers both a physical brain injury and a separate psychological mental and behavioural disorder. If both the organic brain injury and the psychological disorder separately result in emotional or behavioural impairments, are both the physical brain injury and the psychological disorder each to be rated for such impairments and then combined as provided for in the (Guides)?

The separate origin of Mr. Allen’s impairments was evident.  One of his best friends, a passenger in the same vehicle, was killed, resulting in Mr. Allen’s depression and psychological problems.  Mr. Allen also suffered a closed head injury with 10 to 15 minutes of unconsciousness and a Glasgow Coma Scale reading of 14, which was recorded after some delay when he was eventually extracted from the mangled vehicle.

Under Chapter 14 of the Guides, emotional and behaviour impairments have commonly (but not exclusively)  been converted into a whole person percentage impairment rating by reference to the Guides’ Table 3, in Chapter 4, which deals with neurological impairments arising due to brain injury.  Physical brain injuries, however, are also dealt with under Chapter 4, Table 3. So the question became, what to do if you have separate impairments dealing with the same sections of the Guides?

The Overlap

The overlap was called “double counting” by Arbitrator Smith.  Director’s Delegate Blackman observed that this is not a novel issue and noted the many cases that have had to deal with an issue of double counting in the past.

In rendering his decision, Mr. Blackman reiterated a number of principles applicable to catastrophic impairment determinations which have broad application to all cases:

1. The Guides should be given a remedial, broad and liberal interpretation;
2. Whether a person has sustained a catastrophic impairment, including all intermediate findings necessary to a final decision, is an adjudicative, not a medical determination; and
3. When determining whether an applicant has suffered a 55% or more whole person impairment, the applicable statutory interpretation is one of impairment.  It is the claimant’s impairments that must be rated, not his or her symptoms.

As stated by Mr. Blackman:

The key is that these Chapter 4 emotional or behavioural disturbances are the result of neurologic impairments. Chapter 14, however, states in its introduction that this “chapter discusses impairments due to mental disorders.”…. Under Chapter 4 of the Guides it was incumbent upon the Arbitrator to determine what, if any, emotional or behavioural disturbances were “the result of neurological impairments.” I find that the Arbitrator erred in law in failing to do so…..It was incumbent upon the Arbitrator to rate both aspects of the Appellant’s brain impairment, providing separate ratings under both Table 2 and Table 3, and then use the most severe rating to combine that rating, using the Combined Values Chart, with the other impairment ratings.

This decision is, however, currently the subject of a judicial review application by Security National, so stay tuned for the final word in the coming months.

Also see this case commentary from Law Times.