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Combining Physical and Psychological Impairments when Determining Catastrophic Assessment.

January 30, 2009, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Arbitrator: John Wilson
 
Decision Date: December 18, 2008      
 
Maria Augello was injured in a motor vehicle accident on September 7, 2002. She applied for and received statutory accident benefits from Economical Mutual.
 
Ms. Augello was assessed for catastrophic impairment and, based on a 55% or more whole person impairment, Dr. Becker found that she met the definition of catastrophic impairment. In so doing Dr. Becker utilized the analytical approach outlined by Spiegel J. in Desbiens v. Mordini, assigning percentages for psychological impairments, and combining these with physical impairment ratings to reach a full body impairment rating that met the threshold for catastrophic impairment.

Economic Mutual’s assessors, who did not accept the formula for the assessment of whole body impairment, found that Ms. Augello did not meet the criteria for catastrophic impairment.

The nub of the dispute between the parties is this difference in approach between the assessors, and whether percentage impairment values could be assigned to mental and behavioural disorders to facilitate the combination of physical and psychological impairments in determining an individual's whole person impairment.

Therefore, the issue of the hearing was if Ms. Augello was entitled to a finding of catastrophic impairment based on a whole body impairment rating which assigns percentage values to psychological impairments so as to facilitate the combination of physical and psychological impairments for the purposes of the calculation of whole body impairment.

Economic Mutual conceded that if the approach taken by Dr. Becker in his assessment of Ms. Augello was found to be valid, then Ms. Augello would meet the threshold for a finding of catastrophic impairment.

There is a profound disagreement between many medical experts in the field of disability assessment as to the exact role that the AMA Guides play in determining catastrophic impairments.
 
Dr. Brigham, a prominent American advisor on disability issues, participated in the development of the original guidelines, and claims to have a special insight into what was intended by the committee which drafted the original guidelines. Dr. Brigham and his colleague have posited that the intention or original meaning of the provision was that no numeric rating could be given to psychological disorders, with the result that such disorders could not directly be added to the numerical physical rating to push the whole person impairment over the necessary threshold for catastrophic impairment.

It is clear from the Catastrophic report of the Custom Rehab team, headed by Dr. Rehan Dost, neurologist, that the Economic Mutual's experts were firmly in the Brigham camp, finding a 20% whole person impairment, when, as they acknowledged in their own report, the amount under a Desbiens approach would have been 55%.

Indeed, Economical acknowledged that should the Desbiens approach be found to be appropriate, Ms. Augello would have met the criteria for catastrophic impairment.
 
Section 2(1.1) of the Schedule was cited in this case: “a catastrophic impairment caused by an accident that occurs before October 1, 2003 is: (f) subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 per cent or more impairment of the whole person.”

The inclusion of the AMA Guides in the Schedule does not happen in a vacuum. Section 121 of the Insurance Act, indeed provides for such adoption by reference "…with such changes as the Lieutenant Governor in Council considers necessary…" That provision reads as follows: “121(2.2) A regulation made under subsection (1) may adopt by reference, in whole or in part, with such changes as the Lieutenant Governor in Council considers necessary, any code, standard or guideline, as it reads at the time the regulation is made or as amended from time to time, whether before or after the regulation is made.”

Spiegel J. in Desbiens v. Mordini provided the pioneering analysis of the interaction of the AMA Guides with the balance of the Schedule to which it is incorporated by reference. It is this interpretation which Dr. Brigham and his acolytes now challenge. Spiegel J. began his analysis with an examination of the general purposes of the AMA Guides themselves.

The stated purpose of the AMA Guides was to achieve a greater degree of objectivity in estimating the degree of permanent impairments by providing a standard framework and method of analysis. There are various definitions of "impairment" in the AMA Guides, including: "an alteration of an individual's health status" and, "a deviation from normal in the body part or organ system and its functioning". It is defined in the AMA Guides' Glossary as "the loss, loss of use, or derangement of any body part, system, or function." The editors state that the Guides definition of impairment closely parallels that of the World Health Organization (WHO) that has defined impairment as "any loss or abnormality of psychological, physiological or anatomical structure or function." The definition of impairment in the Regulation is virtually identical to the WHO definition.
 
The insurance legislation in Ontario appears to require precisely what the Guides themselves discourage.
 
Spiegel J's approach to the guidelines was to treat them as part and parcel of the legislation which incorporated them, rather than as a free-standing text. As legislation, the AMA Guides are then subject to the well-known principles of legislative interpretation that govern any legislation in a common law context.
 
The arbitrator saw no reason to disagree with Spiegel J.'s approach to interpretation and his application of the rules of statutory interpretation generally used in Canada in understanding the meaning of the AMA Guides in this context.

The arbitrator also accepted Spiegel J.'s findings that the result of the application of these principles of statutory interpretation is that one is entitled to assign "percentages to Mr. Desbiens' psychological impairments and to combine them with his physical impairments in determining whether he meets the definition of catastrophic impairment under clause (f)."

Spiegel J. concluded that the interpretation did not offend the legislative text and it gave effect to the purpose of the legislation.

While there may be a slightly greater diversity of opinion concerning catastrophic impairment at the level of arbitration, all the most recent decisions at both arbitration and in the courts have consistently accepted the approach enunciated by Spiegel J. in Desbiens.

It is the decisions in the superior courts which are important from the point of view of binding precedent. While potentially persuasive, arbitration decisions were not binding on the arbitrator.
 
Moreover, there is a well-accepted principle of administrative law that stare decisis does not apply to administrative tribunals. A tribunal is not bound to follow its own decisions on similar issues, although it may consider an earlier decision persuasive and find that it is of assistance in deciding the issue before it.
 
In Arts v. State Farm, another matter involving issues surrounding the assessment of catastrophic impairments, Mackinnon J. opted for Spiegel J.'s approach, including consideration of all impairments, however caused, and where appropriate, adding them together to determine whole body impairment.


Spiegel J.'s approach to the assessment of catastrophic impairment has now been adopted by the courts in Ontario. In the absence of conflicting jurisprudence emanating from the superior courts of this province the arbitrator was bound to accept that the approach enunciated by Spiegel J. was the correct way to proceed in the assessment of catastrophic impairment based on whole body impairment.

There is no dispute that one of the main objectives of insurance law is consumer protection, particularly in the field of automobile and home insurance. Therefore, it seemed at odds with such a consumer protection mandate that an evaluation of catastrophic impairment, the key to enhanced coverage, could take place in the absence of a means of combining physical and psychological impairments for the purposes of the calculation of whole body impairment. Patently such a denial would leave insureds who suffered psychological sequelae to a motor vehicle accident at a disadvantage when attempting to access the higher range of benefits available to a catastrophically impaired individual.

Whatever the original creators may have intended when they developed the AMA Guides, the Guides, as included in the Statutory Accident Benefits Schedule have developed a life of their own, independent of the wishes and opinions of their creators.

Since the Guides, as included in the Schedule, are necessarily seen as part of subsidiary legislation, the courts judges and arbitrators have, through their decisions over time, added a gloss, or an interpretation that is helpful in integrating them into the scheme as a whole.
 
The arbitrator also dealt briefly with the issue of contractual interpretation as it related to the Guides, since patently the contract of insurance is at the base of any accident benefit coverage.

If a determination of the threshold to allow a higher level of coverage in catastrophic cases is a coverage issue, then given competing interpretations of the provisions, any confusion or discrepancy in the legislative scheme, and hence in the contract should be interpreted in a manner that favours the insured.

As noted earlier, a determination of catastrophic impairment is the key to unlocking further, enhanced benefits under the contract of insurance. Taking such an approach, where there are two or more possible interpretations of contractual wording, relevant to coverage, the interpretation which favours the insured should prevail. Under such a scenario, the Desbiens approach to interpreting the AMA Guides should, as well, be preferred.

For all the above reasons the arbitrator found that the approach taken by Spiegel J. in Desbiens v. Mordini, allowing for the "stacking" of impairments, whereby mental and behavioural disorders could be assigned a percentage and included in the determination of whole person impairment in clause (f) was correct and should have governed the assessment of Ms. Augello in the matter.
Posted under Accident Benefit News, Automobile Accident Benefits, Car Accidents, Catastrophic Injury, Disability Insurance

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