Law Times

Law Times • sepTember 12, 2016 Page 11 www.lawtimesnews.com Complicated scoring on catastrophic impairment Adjudicators still grappling with rating system: lawyer BY MICHAEL MCKIERNAN For Law Times A Financial Services Commission of On- tario arbitration appeal shows adjudicators are still struggling with the rating system for determining if an in- jured person has sustained a "cat- astrophic impairment" under the province's Statutory Accident Benefits Schedule, according to a London, Ont. insurance lawyer. In a July 6 decision, director's delegate Lawrence Blackman sent Miguel Allen's claim for a cata- strophic designation back for re- determination after finding the original arbitrator had confused symptoms for "impairments" and failed to determine the cause of Allen's mental impairments as part of his rating calculation. Hermina Nuric, a lawyer with Miller Thomson LLP's in- surance litigation group in Lon- don, Ont., says it's far from the first time she's seen an arbitrator get the complicated scoring sys- tem wrong. "Here, the arbitrator seems to have misunderstood the process by which you assign percent- ages to impairments," Nuric says. "For whatever reason, there is still confusion, and we keep having to have these clarifying decisions." The SABS allows for a cata- strophic designation in cases where a combination of perma- nent mental and physical prob- lems result in at least a 55-per- cent rating under its whole- person-impairment test. In Al- len's case, he turned to his first- party insurer Security National Insurance Company for coverage after his involvement in a 2008 head-on collision that killed his friend, and the case ended up at FSCO for arbitration. As part of a decision pegging Allen's WPI at 52 per cent, ago- nizingly short of the catastroph- ic threshold, arbitrator Alan Smith of ADR Chambers re- fused to assign Allen any rating for his emotional or behavioural impairments under chapter 4, table 3 of the American Medical Association's guide to evaluating permanent impairments, which deals with problems arising as a result of neurological damage. Smith expressed concern that doing so could result in "double counting" of impairments already taken into consideration under chapter 14 of the guide, which covers mental and behavioural disorders more generally. It made "no sense," Smith found, "to rate the appellant twice for the same set of symptoms, each obtained in isolation from the other." However, in an appeal, Al- len's counsel, Andrew Murray, a personal injury partner in Lern- ers LLP's London office, argued that his client deserved a score for both chapter 4 and chapter 14, since his accident had caused a physical brain injury, as well as a separate psychological mental and behavioural disorder that could have been acquired with- out the damage to his brain. "If both the organic brain in- jury and the psychological disor- der separately result in emotion- al or behavioural impairments, are both the physical brain injury and psychological disorder each to be rated for such impairments and then combined? My answer is yes," wrote Blackman, siding with Allen. "It was incumbent upon the arbitrator to determine what, if any, emotional or behav- ioural disturbances were 'the result of neurological impair- ments.' I find the arbitrator erred in law in failing to do so." In addition, Blackman found it was appropriate to give the impairment guidelines a "larger and more liberal" interpreta- tion, since a determination of catastrophic impairment does not guarantee access to extra health-care funds. Instead, each individual claim for goods or services must be found to be rea- sonable and necessary. "You don't get anything for a finding of catastrophic impair- ment. There's no prize or T-shirt that comes with it," Murray says. "It simply gives you the oppor- tunity to make applications for other things you might need. You always have to meet that test." "I think this comes up a lot, where impairments are not prop- erly quantified, because you can imagine a number of situations where you have a series of overlap- ping impairments," Murray adds. And Murray says arbitrators' jobs will only get more com- plicated as they begin hearing cases concerning the province's new definition of catastrophic impairment in the SABS, which plaintiffs' lawyers have criticized as more confusing and restric- tive than ever. The new definition, which came into force this year for claimants under insurance poli- cies issued or renewed after June 1, controversially scrapped the Glasgow Coma Scale as a meth- od for determining whether a brain injury meets the threshold for catastrophic impairment. Typically administered by frontline health workers, the coma test took observations about a patient's consciousness and brain function and turned them into a score out of 15. Any insured person who scored less than 10 during a test adminis- tered within a reasonable period of time after the accident quali- fied as catastrophically impaired. 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