Catastrophic Impairment: How to rate overlapping impairments

I had the privilege of acting as counsel in Allen and Security National, before ADR Chambers Arbitrator Alan Smith and again on appeal to Director’s Delegate Lawrence Blackman.  In an important decision, released July 6, 2016, Mr. Blackman clarified the proper way to rate impairments when determining an individual’s whole person impairment, saying: 

” 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 psychological disorder each to be rated for such impairments and the combined?  My answer is yes.”

 Mr. Blackman went on to elaborate with the following observations:

  • the issue of double counting is not novel and has been allowed in earlier cases
  •  the AMA Guides should be given a remedial, broad, and liberal interpretation
  • whether someone has a CAT impairment is an adjudicative, not medical determination
  • it is inappropriate to rate “symptoms”, rather, one rates impairments
  • it was incumbent on the arbitrator to rate both the mental status impairment and the emotional and behavioural impairment (tables 2 and 3 in Chapter 4 of the Guides), and then use the most severe rating to be combined with other impairments, including combination with the impairment rating determined as a result of a Chapter 14 mental and behavioural disorder

This decision is a significant appeal level decision and should be read by everyone involved with CAT determinations.  Many of the over-arching principles continue to apply, even with the change in definition for catastrophic impairment that applies to accidents occurring on or after June 1, 2016.

Decision-of-Directors-Delegate-Lawrence-Blackman

 

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Andrew Murray

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