May 11, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Allen and Security National Insurance Co./Monnex
Decision Date: February 3, 2015
Heard Before: Adjudicator Alan Smith
CATASTROPHIC IMPAIRMENT: double counting of AMA guide and WPI measures; applicant fails to reach 55% WPI and is denied CAT claim
Mr. Miguel Allen was injured in a car accident September 5, 2008 and sought accident benefits from Security National/Monnex but when the parties were unable to resolve their disputes through mediation Mr. Allen applied for arbitration at the FSCO.
- Does Mr. Allen suffer from a catastrophic impairment caused by the motor vehicle accident?
- Mr. Allen is not suffering from a catastrophic impairment caused by the motor vehicle accident pursuant to the Schedule.
Mr. Allen was 19 when he was the driver involved in a violent high speed head on collision, killing one of Mr. Allen’s friends. According to the Paramedic Call Record, Mr. Allen was observed to be unresponsive for between 10 and 15 minutes. It took first responders upwards to 30 minutes to extract Mr. Allen from the vehicle. He sustained a right femoral fracture and right calcaneus fracture. He also had a right pulmonary contusion at that time. Mr. Allen spent days in the NT ICU where he recovered and then was transferred to the Step-Down Unit when further examination discovered right calcaneus fracture that was also taken to the OR for open reduction and internal fixation. After that Mr. Allen received crutches training where he had training on how to use crutches. After Mr. Allen was deemed able to go back home by physiotherapy and occupational therapy, he was discharged on 23 September 2008 with follow-up to Dr. Ahn’s clinic in 4 weeks’ time and prescription for Percocet, a number of 30 tablets.
Key Issue of Law – “Double Counting”
In determining Mr. Allen’s whole person impairment (WPI) the real issues becomes the manner in which physical, mental and psychological complaints ought to be combined in order to derive a whole person impairment rating within the meaning of the AMA Guides.
Security National has acknowledged that one must take the various impairments of Miguel Allen at their highest [but has asserted that restrictions must be implemented to avoid “double counting”….This case turns on the issue of the approach to be adopted for the use of Chapter 4, Table 3, where, in addition to a head injury, there are also separate emotional and behavioural complaints which need to be rated under Chapter 14.
The Adjudicator agreed with this position. The answer to the “double counting” issue is determinative of whether Mr. Allen can succeed in the Application.
Mr. Allen argues that Dr. HB, qualified at the Arbitration Hearing as an expert on the use of Guides, took the proper approach in combining the percentage ratings in the relevant chapters of Guides. DR. HB’s methodology allows for a percentage rating pursuant to Guides Chapter 3 - “The Musculoskeletal System” to be combined with a percentage rating provided by physiatrist Dr. LB pursuant to Chapter 4, Table 3 and a further rating made by psychologist Dr. HR pursuant to the Table in Chapter 14.
Mr. Allen opines that the Insurer’s psychologist, Dr. RLB, took the wrong approach, that is, by only providing an impairment rating for Mr. Allen under Chapter 4, Table 2 and deferring a rating assessment for emotional/behavioural issues to Dr. F who assessed Mr. Allen pursuant to the Table in Chapter 14. In support of his position, Mr. Allen points to page 140 of Guides which states:
The most common categories of impairment resulting from disorders of the forebrain are as follows: (1) disturbances of consciousness and awareness; (2) aphasia or communication disturbances; (3) mental status and integrative functioning abnormalities; (4) emotional or behavioural disturbances; (5) special types of preoccupation or obsession;…A patient may have more than one type of cerebral dysfunction listed above. The most severe of the first five categories shown above should be used to represent the cerebral impairment…[emphasis in original].
Mr. Allen says this passage from Guides illustrates that it was a mistake in law for the Insurer not to rate Mr. Allen for emotional or behavioural disturbances under Chapter 4. Mr. Allen urges me in his written submissions to attempt, “an approach that conforms with the Guides”. He goes on to argue:
There are numerous examples of genuine impairments that simply cannot be rated, as the Guides afford no impairment rating. In particular, as it relates to Mr. Allen, unrated areas including headaches, the permanent placement of an inter-modularly nail running the length of the femur, the chip in his wrist that still causes pain, and leg length discrepancy of less than 2 cm. In its wisdom, the Guides leave out such things, but then, in its wisdom, the Guides also demand other methodologies which might appear to overrate certain other impairments.
Mr. Allen argues that Dr. HB provided an opinion in his testimony that there was a “synergy” between Guides Chapters 4 and 14, but he was uncertain whether that meant there should be a subtraction or addition to the final WPI when ratings under both chapters were included. Dr. HB also indicated in testimony that he was undecided whether the “overlap” between the two chapters was quantifiable.
Mr. Allen also points out that Dr. HP the Insurer’s expert in the interpretation of Guides, admitted at the Hearing that 10 years ago, it would have been his opinion that physical and psychological impairment should not be combined under the Schedule, s. 2(1.2)(f). That approach now being ruled as wrong by the Ontario Court of Appeal in Kusnierz.
The Insurer argues that it is not appropriate to use Chapter 4 to arrive at a psychological impairment rating because the chapter was intended for use in the case of a head injury. The Insurer opines that Guides do not allow for the combination of percentage scores that both contain an impairment rating for the same symptomology.
Analysis of the “Double Counting” Issue
Since Guides is unclear on the issue of double counting as it is manifested in the present Application, it is necessary to “tease out” an answer from the underlying methodology in Guides.
The Purpose of Guides
The Adjudicator reviewed the law and Guides and noted that part of the answer to the double counting question is to determine the real purpose of Guides in the context of s. 2(1.2)(f) of the Schedule. In Pilot Insurance and Ms. G Director’s Delegate Makepeace quotes with approval from the original Arbitration Order as follows:
…it is important to be cognizant that the Guides are not intended to reduce human beings to a collection of bones, nerves, flesh and sinew. Body parts do not have impairments. People have impairments. I agree with the comments of Dr. J. McCall, orthopaedic surgeon, in his December 3, 2003, report that “[i]n dealing with a case like this [that of Mr. Allen], it is important to deal with the person as a whole and not just focus on the individual injuries.” The challenge for adjudicators is to rise above the trees and to see the forest.
On this basis the Adjudicator concluded that it is his mandate to “rising above the trees to see the forest” requires me to consider Mr. Allen’s impairments in their totality, viewing him as a whole person and to not fixate on the individual organ system chapters contained in Guides. Ultimately, there must be a determination of Mr. Allen’s actual level of impairment. Therefore, it makes no sense to rate Mr. Allen twice for the same set of symptoms, each obtained in isolation from the other. This would be exactly the case if percentage impairment ratings are obtained from both Chapter 4, Table 3 and the Table in Chapter 14. Such a methodology would indeed be double counting and lead to significantly over estimating the extent of Mr. Allen’s psychological impairment.
In Pastore v. Aviva Canada Inc., Arbitrator Nastasi opined,
Chapter 4 of the Guides provides percentage ranges for psychological impairments. Chapter 4 is used when the disturbance or disorder is caused by dysfunction to the brain or central nervous system. The features and characteristic of the mental disorders that fall within Chapter 4 and 14 may be the same, the difference however, is the cause of the impairment.
The Adjudicator agreed with Arbitrator Nastasi and therefore conclude that the correct approach in determining whether psychological impairments should be rated under Chapter 4 or 14 is an initial determination as to the cause of the impairment.
On balance, the Adjudicator concluded that although the exact etymology of Mr. Allen’s symptoms is uncertain, from a causation point of view, an impairment rating from Chapter 4, Table 2 is more properly included in the final WPI Rating, rather than Table 3.
The Relationship between Chapter 14 and other Chapters in Guides was addressed In Kusnierz, when the Court noted that:
“…the Guides describe a number of situations where an assessment of a person’s physical impairment should take into account c. 14 mental and behavioural impairments
The Adjudicator noted that the Guides examples are illustrative rather than exhaustive. In at least five places, the Guides recommend that physicians refer to c. 14 in assessing the total impairment of persons suffering from both physical and behavioural/mental impairments. These recommendations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account. There is nothing in the text of the Guides to suggest that this principle should be limited to persons with mammary gland or disfigurement problems. Accordingly, it seems to me that combining physical and psychiatric impairments can be done "in accordance with" the Guides.
This passage from Kusnierz not only illustrates that Guides recommends reference to c. 14 in assessing the total impairment of persons suffering from both physical and behavioural/mental impairments, it can also be read as recommending that an assessor defer to Chapter 14 when there is overlap with another organ system including the Nervous System (Chapter 4).
The combination of ratings pursuant to Chapter 4, Table 3 and the table in Chapter 14 in Guides constitutes double counting and is not “in accordance with” Guides.
The burden of proof rests with Mr. Allen, Mr. Allen. He must prove, on the balance of probabilities, that as a result of the accident, he sustained a catastrophic impairment as defined by s. 2(1.2)(f) of the Schedule.
After reviewing the voluminous evidence in light of not double counting, the Adjudicator concluded that when all the impairment ratings (that is, 28, 14, 4, and 20) are combined, the result is a 52% WPI. 52% “rounded to the nearest value ending in 0 or 5”, as permitted by the Guides, yields 50%, which is insufficient to meet the criteria in clause 2(1.2)(f) of the Schedule, namely 55%.
Mr. Allen has failed to prove, on a balance of probabilities, that he sustained a catastrophic impairment as a result of the accident as defined in the Schedule.