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