Canada: Double Count Me Out: Confusion Persists When Rating Brain Injuries And Mental And Behavioural Disorders

Last Updated: August 31 2016
Article by Hermina Nuric

Concerns about "double counting" in the context of catastrophic impairment determination under the various versions of the Statutory Accident Benefits Schedule ("Schedule") are nothing new. Although the question has been addressed in numerous cases over the years, confusion persists.

Director's Delegate Blackman addressed some of this confusion in his July 6, 2016 decision in Allen and Security National Insurance co./Monnex Insurance Mgmt. Inc. (P15-00018) by reminding everyone that "symptoms" are not synonymous with "impairments" and that determining the cause of the impairment is a role incumbent upon the Arbitrator.

Mr. Allen suffered both a physical brain injury and a separate psychological mental and behavioural disorder. He sought catastrophic impairment determination under clause 2(1.2)(f) of the 1996 Schedule on the basis of an impairment or combination of impairments that resulted in 55% or more whole person impairment (WPI).

Arbitrator Smith of ADR Chambers opined that double counting would occur if percentage ratings were obtained from both Chapter 4, Table 3 (Nervous System: Emotional or Behavioural Impairments) and Chapter 14 (Mental and Behavioural Disorders). He therefore only assigned an emotional or behavioural impairment rating under Chapter 14. He did not provide a rating under Chapter 4, Table 3. He ultimately reached a 52% WPI (50% rounded down), including 28% Chapter 3 (Musculoskeletal System), 14% Chapter 4, Table 2 (Nervous System), 4% Chapter 13 (Skin) and 20% Chapter 14 (Mental and Behavioural Disorders).

Director's Delegate Blackman held that Arbitrator Smith made several errors of law in his conclusion:

  1. He seemingly rated symptoms rather than impairments, specifically when concluding that it made no sense to rate, "the same set of symptoms twice for the same set of symptoms, each obtained in isolation from the other".
  2. He failed to make a determination on causation, as it relates to emotional or behavioural disturbances. This was particularly problematic because determining the cause of the impairment is key to ensuring that the impairment rating doesn't underestimates or overestimates the level of impairment.
  3. He only rated brain impairment at Chapter 4, Table 2, instead of providing separate ratings under both Table 2 and Table 3. The more severe of the two is what represents the appropriate level of cerebral impairment. This number is then combined with the other impairment ratings using the Combined Values Chart.

The question of ratings under Chapter 4 of the AMA Guides was remitted back to arbitration for determination. In Director's Delegate Blackman's view, the key to distinguishing Chapter 4, Table 3 from Chapter 14 is causation. Emotional or behavioural disturbances under Chapter 4, Table 3 result from neurologic impairments, while Chapter 14 addresses impairments that result from mental disorders. The Arbitrator must address causation, even where it seems impractical to do so.

While it may be tempting to view this decision as some sort of a victory for Mr. Allan, that's not necessarily the case. Adjudicators are not restricted to determining a WPI rating within the ranges outlined by the experts. As Director's Delegate Blackman's decision indicates, a WPI range is not very helpful if the expert does not comment on whether emotional or behavioural impairments resulted from Chapter 4 Nervous System injuries or Chapter 14 Mental and Behavioural disorders before the appropriate ratings are assigned. It appears that Mr. Allen's expert did not provide any direct guidance in this regard, at least not in his written report. It is therefore yet to be seen whether Mr. Allen will ultimately be able to obtain a more favourable result at the new hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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