April 28, 2010, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Complex, But Not Ambiguous
Letter To The Editor; Determining catastrophic impairment is a clear, consistent process supported by rigorous scientific methods that don't speak to any sort of 'ambiguity.'
By: Brian E. Levitt & Ronald Kaplan
We appreciate the opportunity to address the article on catastrophic impairment that appeared recently in Canadian Underwriter ('Catastrophic Ambiguity,' January 2010).
The article raised a number of issues ranging from potential ambiguity in the Statutory Accident Benefits Schedule (SABS), concerns over the merit and feasibility of quantifying mental and behavioural impairments, the use of the 4th edition of the AMA Guides to the Evaluation of Permanent Impairment (1993) (Guides 4) and criteria for catastrophic impairment due to brain injury.
We address each of these areas of concern briefly.
COURTS CLEAR AND CONSISTENT ON CATASTROPHIC INJURIES
First, sources in the article say judges and arbitrators have interpreted SABS in a variety of ways. This is incorrect. Numerous recent judicial and arbitral decisions have been clear and consistent with respect to interpreting catastrophic criteria. Decisions have been clear that all impairments are rated with respect to a whole person impairment rating (bodily, mental and behavioural) for consideration under SABS Subsection 1.1 (f). They have also found one marked class of impairment satisfies the test in SABS Subsection 1.1 (g) for catastrophic. No decisions deviate from this, and case law appears to be rather focused and increasingly clear on these issues. The recent Pastore and Augello arbitration appeals provide an excellent historical analysis of the case law, as well as further clarity on these issues, and we encourage readers to seek these out for further review.
IMPAIRMENT RATING HAS MERIT AND METHODOLOGY
Some sources in the article assert that psychological impairment calculations lack any merit or methodology. This is also incorrect. It is not that impairment rating lacks merit. Guides 4 states it is difficult to separate psychological impairment from disability and to make impairment ratings with precision. Guides 4 does not say it lacks merit to provide such ratings estimates. Interestingly, the Guides 4 makes it clear that, with respect to other areas of impairment ratings used throughout the Guides, that these are estimates and thus lack precision. Despite this, the other chapters offer quantitative impairment ratings. Incidentally, the rating table for emotional and behavioral changes after brain injury and disease (Chapter 4) references the scheme used in the mental and behavioral chapter (Chapter 14), and the method is straightforward.
Several methodologies are available to the user of the Guides 4 to quantify mental and behavioural impairments. Possible approaches include rating by analogy (as supported in the Guides 4 and the SABS), using an earlier rating table referenced in Guides 4 (as endorsed in the recent Augello appeal by FSCO arbitrator Lawrence Blackman), and using the Global Assessment of Functioning (GAF) and applying it to a conversion table used by the State of California (as a first step in determining a quantitative mental and behavioural impairment rating) are all possible approaches. No single methodology has been mandated. We note that similarly, there are alternative methodologies used for rating various physical impairments.
Subsection 1.1 (f) of the SABS refers to combining impairments to determine a "whole person impairment (WPI)," not just physical impairments. The mind and body do not exist in separate places; impairments of either or both are necessarily impairments of the same whole person. We note this approach is consistent with the World Health Organization approach to the international classification of functioning (ICF), wherein mental functions are one of eight body functions. Therefore, it is not a "loophole" to include mental and behavioural impairments with all other impairments of a whole person. Rather it is operating in a manner that is consistent with clinical science and fairness. Some people have physical impairments and no mental and behavioral impairments. Some have the same physical impairments, but may also suffer from a disabling depressive or anxiety disorder due to their motor vehicle accident (MVA) and physical injuries that further impair them beyond the impairments due solely to their physical injuries. This is captured by including psychological impairments with other bodily impairments in determining the WPI rating.
This understanding is consistent with Ontario Superior Court Justice Harvey Spiegel's interpretation of Subsection 1.1 (f) of the SABS as a "catch all." It points to a rating of the whole person, which includes bodily and mental and behavioral impairments. There is no reason why this would create any ambiguity, confusion or lack of clarity. Also, Spiegel's interpretation is not that Subsections 1.1 (f) and (g) of the SABS are combined, a common misunderstanding. Subsection 1.1 (f) is a quantitative definition of impairment that covers the whole person, whereas (g) is a qualitative definition that focuses specifically on mental and behavioral impairments.
CAUSES OF MENTAL OR BEHAVIOURAL IMPAIRMENT ARE ANALOGOUS
The article raises the point that mental and behavioural impairment due to brain injury is not analogous to mental and behavioural impairment due to another psychological disorder. However, DSM-IV-TR does not make this distinction in applying a GAF (a symptom severity or functional impairment rating) as a part of any diagnosis (due to brain injury or other psychological disorder). In addition, Guides 6 uses a GAF table in both the neurological chapter's rating of mental and behavioural impairment due to brain injury and rating in the chapter devoted to mental and behavioral impairment due to psychological disorder. It does not have an issue with quantifying mental and behavioural impairments due to psychological disorders that are not caused by brain injury to be combined in a whole person impairment rating with ratings from the other chapters covering bodily impairments. Again, the idea that rating mental and behavioural impairments lacks merit and sound methodology to determine valid ratings is not consistent with current science. Indeed, one of the strongest fields in the health sciences is that of psychometrics and measurement of behaviour.
Further, the issue of outdated versions of the AMA Guidelines being required in the SABS is a problem faced in all jurisdictions when legislation/regulation is developed at a certain time and mandates a certain version of the Guides. Since there are substantial differences in the philosophy and methodology of later versions of the Guides, they cannot simply be substituted for the 4th edition. Rather, careful consideration is needed regarding how use of newer versions would affect ratings -- particularly in the areas of neurology and psychiatry, where substantial changes occurred. In addition, one must consider the interaction of the Guides and the SABS, the development of case law and unpredictability associated with introduction of another version of the Guides.
There has also been considerable misunderstanding regarding the rationale for placing the Glasgow Coma Scale (GCS) in the SABS. The Glasgow Coma Scale is probably the only measure of brain impairment/brain injury found in the medical file of almost every patient who suffers a brain injury in situations in which their level of consciousness is reduced. Use of the GCS allows an early, administratively simple determination of "catastrophic impairment" status on the day of the motor vehicle accident. This in turn provides a high level of certainty regarding potentially available benefits for insureds with brain injuries. The problem is not the inclusion of a measure that allows early identification of those at risk of needing a higher level of benefits due to brain injury. Actual access to those funds is dependent upon the "reasonable and necessary" test. Rather, the problem is that no method has been determined for early identification of those at risk of a need for a higher level of benefits due to multiple complex physical injuries, causing those with severe orthopedic injuries to have to wait two years or more for determination.
Any changes to the SABS with respect to catastrophic impairment must be entered into with great care. There is a clear rationale for including the GCS as a useful indicator of catastrophic impairment. Also, including mental and behavioural impairments with other bodily impairments to determine WPI is in keeping with contemporary understanding that the mind and body are aspects of the same whole person; they do not exist in separate places. There are clear, valid methodologies applicable to rating mental and behavioural impairments. These ratings have merit in consideration of an overall whole person impairment rating. We conclude that, although catastrophic impairment analysis is a complex undertaking, it is not an ambiguous one.
Guide 4 states it is difficult to separate psychological impairment from disability and to make impairment ratings with precision. Guide 4 does not say it lacks merit to provide such ratings estimates.
The idea that rating mental and behavioural impairments lacks merit and sound methodology to determine valid ratings is not consistent with current science. Indeed, one of the strongest fields in the health sciences is that of psychometrics and measurement of behaviour.
Any changes to the SABS with respect to catastrophic impairment must be entered into with great care. Including mental and behavioural impairments with other bodily impairments to determine WPI is in keeping with contemporary understanding that mind and body are aspects of the same whole person.