Catastrophic Determination: Combining Physical and Psychological

CATASTROPHIC IMPAIRMENT

Where a person is injured in a motor vehicle collision in Ontario, he or she is entitled to benefits under the Statutory Accident Benefits Schedule (the “Schedule”).1

The quantum of benefits to which a person is entitled depends on whether he or she meets the test for “catastrophic impairment”. A person who meets the test for catastrophic impairment is entitled to substantially enhanced benefits.

The definition of catastrophic impairment in the Schedule is designed to ensure that the people with the most serious injuries and impairments have access to enhanced benefits.2 People with paraplegia or quadriplegia, amputation of multiple limbs, blindness in both eyes, significant brain impairments and marked psycho-emotional impairments all qualify as catastrophically impaired.   All of those impairments are serious. They are included in the definition of catastrophic impairment because it is expected that people with those impairments will have substantial care needs.

The drafters of the Schedule also recognized that a combination of impairments can result in substantial care needs. As such, the Schedule provides that a person can be catastrophically impaired based on a combination of impairments. This is accomplished by subsection (f) of the definition of catastrophic impairment which provides that catastrophic impairment includes:

“…an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993, results in 55 per cent of more impairment of the whole person”

Subsection (f) is unlike the other parts of the definition of catastrophic impairment. All of the other parts of the definition identify specific impairments that alone can be expected to result in substantial care needs. Subsection (f), on the other hand, recognizes that a combination of impairments can result in substantial care needs.

THE ISSUE

Subsection (f) of the definition of catastrophic impairment was the subject of close judicial scrutiny in the case of Desbiens v. Mordini (hereinafter “Desbiens”).3 One of the issues in that case was whether psychological impairments could be considered in determining whole person impairment under subsection (f).

The defendant in Desbiens argued that psychological impairments could not be considered in determining whole person impairment pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “AMA Guides”).

The AMA Guides are a reference source used by physicians in evaluating the extent of impairments. The AMA Guides contain 15 Chapters. Chapters 1 and 2 deal with impairment evaluation and reporting in general. Chapters 3 through 13 deal with different physical systems. Chapter 14 deals with mental and behavioural disorders. Chapter 15 deals with pain. Each chapter provides physicians with information on how to estimate the extent of a specific impairment by assigning it a percentage of whole person impairment.

There is a combined values table at the end of the AMA Guides. It allows physicians to combine impairment ratings from different systems (ie. from different chapters) in order to arrive at a whole person impairment rating. It is this whole person impairment rating that is used in assessing whether a person is catastrophically impaired pursuant to subsection (f) of the definition of catastrophic impairment.

In Desbiens, the defendant argued that psychological impairments could not be considered in determining whole person impairment. This argument was based on statements made in Chapter 14 of the AMA Guides, which deals with mental and behavioural disorders. In the 4^th edition of the AMA Guides a decision was made to estimate impairment from mental and behavioural disorders in classes rather than by percentages. Mental and behavioural disorders are classified from Class 1 (no impairment) to Class 5 (extreme impairment).

Previous editions of the AMA Guides had assigned percentage ratings to mental or behavioural disorders in the same way that percentage ratings are assigned to other impairments in other chapters. After some consideration, the authors of the 4^th edition of the AMA Guides chose not to use percentage ratings for mental or behavioural disorders. They explained their decision as follows:

The decision not to use percentages for estimates of mental impairment in this fourth edition of the Guides was made only after considerable thought and discussion. The second edition (1984) provided ranges of percentages for estimating such impairment. Mental functions, such as intelligence, thinking, perception, judgment, affect, and behaviour, were consider to fall into five classes, and the ranges were given as follows: normal, 0% to 5%; mild impairment, 10% to 20%; moderate impairment, 25% to 50%; moderately severe impairment, 55% to 75%; and severe impairment, more than 75%.

…

There are some valid reasons to use ranges of percents for mental impairments. If this were done, the chapter on mental disorders would be consistent with Guides chapters for the other organ systems. Another point is that various systems for estimating disability have developed ranges of percentages; if such estimates were not provided in the Guides, the material in the Guides on mental disorders might be ignored. This would increase the likelihood that estimates would be made inconsistently in the various jurisdictions.

A more persuasive argument is that, unlike the situations with some organ systems, there are no precise measures of impairment in mental disorders. The use of percentages implies a certainty that does not exist, and the percentages are likely to be used inflexibly by adjudicators, who are then less likely to take into account the many factors that influence mental and behavioural impairment.4

The defendant in Desbiens seized upon this excerpt from the AMA Guides to argue that it is impermissible to assign percentage values to psychological impairments in determining whole person impairment pursuant to subsection (f) of the definition of catastrophic impairment.

There is no doubt that the authors of the 4^th edition of the AMA Guides chose to classify the extent of impairments from mental and behavioural disorders differently than other types of impairments. However, they also acknowledged that it would sometimes be necessary to assign percentage ratings to impairments from mental and behavioural disorders:

Physicians, of course, must often make judgments based more on clinical impression than on accurate, objective, analytic empiric evidence. In those circumstances in which it is essential to make an estimate, the ordinal or numeric scale might be of some general use. 5

It is apparent from this statement that the authors of the 4^th edition of the AMA Guides recognized that physicians will sometimes need to assign percentage values for psychological impairments. The percentage ratings for mental and behavioural disorders from the 2^nd edition of the AMA Guides were reproduced in the 4^th edition of the AMA Guides to provide physicians with guidance in assigning percentage ratings for psychological impairments.

The AMA Guides also recognize that brain injuries can cause mental and behavioural impairments. Chapter 4 of the Guides deals with the nervous system. That chapter assigns percentage ratings for emotional or behavioural impairments caused by brain injuries:6

Emotional or Behavioural Disturbances

These types of disturbances illustrate the interrelationships between the fields of neurology and psychiatry.  The disturbances may be the result of neurologic impairments but may have psychiatric features as well, which may range from irritability to outbursts of rage or panic and from aggression to withdrawal.  These illnesses may include depression, manic states, emotional fluctuations, socially unacceptable behaviour, involuntary laughing or crying, and other kids of central nervous system responses.  The criteria for evaluating these disturbances (Table 3, below) relate to the criteria for mental and behavioural impairments (Chapter 14, p. 291)

Table 3.  Emotional or Behavioural Impairments

Impairment description	% impairment of the whole person
Mild limitation of daily social and interpersonal functioningModerate limitation of some but not all social and interpersonal daily living functions   Severe limitation impeding useful action in almost all social and interpersonal daily functions   Severe limitation of all daily functions requiring total dependence on another person	0-1415-29   30-49   50-70

In Desbiens, the defendant argued that the AMA Guides did not allow percentage ratings to be assigned to psychological impairments. The plaintiff argued that there was no absolute prohibition against assigning percentage ratings to psychological impairments in the AMA Guides and that this must be done to give effect to the language and the purpose of the Schedule.

THE DECISION IN DESBIENS

Justice Spiegel heard eight weeks of evidence in the Desbiens case, including substantial expert evidence on the proper interpretation of the AMA Guides. His Honour rejected the defendant’s argument. Justice Spiegel found that the plain language of the Schedule mandated that psychological impairments be considered in assessing whole person impairment.  His Honour found that the defence argument ran contrary to the purpose of the Schedule. Justice Spiegel found that the AMA Guides did not prohibit inclusion of psychological impairments in determining whole person impairment.

A)           THE PLAIN LANGUAGE OF THE SCHEDULE

Justice Spiegel carefully analyzed the definition of catastrophic impairment. Under subsection (f) a person is catastrophically impaired where he or she has “an impairment” or “combination of impairments” that results in 55 per cent or more impairment of the whole person in accordance with the AMA Guides.

The term “impairment” is defined in the same section of the Schedule in which catastrophic impairment is defined.   The definition of impairment is as follows:

“impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function.

Therefore, the word impairment is expressly defined to include psychological impairments.

The words “impairment” and “combination of impairment” in subsection (f) must be read in conjunction with the definition of impairment, which includes psychological impairments.

As Justice Spiegel pointed out in Desbiens, the definition of “impairment” in the Schedule is extremely broad:

[T]he definition of “impairment” as meaning “a loss or abnormality of a psychological, physical or anatomical structure or function” is extremely broad.  Indeed, it is difficult to conceive of a more inclusive definition. 7

The Legislature chose to expressly include psychological impairments in the definition of impairment in the Schedule. As Justice Spiegel pointed out in Desbiens, if the Legislature had intended to limit whole person impairment to physical impairments, it would have written that into the Schedule:

[T]here is nothing in the text of the Regulation that suggests that a combination of physical and psychological impairments is not permitted.  Indeed clause (f) permits any combination of impairments, both physical and psychological. The only requirement is that these impairments must result in a 55% WPI “in accordance with” the Guides. While the definition in clause (g) does not include mild or moderate psychological impairments there is nothing in the Regulation that prohibits such impairments from being considered under clause (f). If the intention were to exclude psychological impairments from clause (f), the insertion of the word “physical” before the word “impairment[s]” would easily have achieved that purpose. 8

 B)           THE PURPOSE OF CATASTROHIC IMPAIRMENT

 Justice Spiegel carefully analyzed the history and the purpose of the definition of catastrophic impairment.   He found that the definition of catastrophic impairment was intended to foster fairness for the victims of motor vehicle collisions, by ensuring that the accident victims with the most need have access to expanded medical and rehabilitation benefits.9

As Justice Spiegel pointed out, the definition of catastrophic impairment is intended to by inclusive:

[T]he text of the Regulation itself indicates that the drafters clearly intended the definition of ‘catastrophic impairment’ to be inclusive rather than restrictive.

Firstly, as has been noted, the definition of ‘impairment’ as meaning ‘a loss or abnormality of a psychological, physical or anatomical structure or function’ is extremely broad.  Indeed it is difficult to conceive of a more inclusive definition.

Secondly, clause (f) ensures that persons who do not suffer any of the specific injuries or conditions described in the other clauses of ss. 5(1), but nevertheless have an impairment, or a combination of impairments, that is so severe that they are among those with the greatest need for health care are able to recover the expenses of that health care. In effect, the legislature, with clause (f), included a catch-all provision for the benefit of those who were likely in the greatest need of health care.

Thirdly, in order to ensure that no impairments were overlooked in determining whether the requirements of clause (f) and (g) were met, the analogous impairment provision, ss. 5(3) was included.10

There is no doubt that a combination of impairments can result in substantial health care needs. That is true for a combination of physical impairments. It is no less true for a combination of physical and psychological impairments.   If psychological impairments are excluded from whole person impairment, a person with substantial care needs due to a combination of physical and psychological impairments would not qualify as being catastrophically impaired.  Such an interpretation does not advance the legislative purpose of ensuring that the people with the most needs get the most benefits. Justice Spiegel concluded that such an interpretation would be unjust:

In my view, to deprive innocent victims of motor vehicle accidents the right to recover much needed health care expenses because their psychological impairments cannot be combined with their physical impairments in considering their overall WPI is unjust. 11

Justice Spiegel also found that the defendant’s proposed interpretation violated the Charter of Rights and Freedoms.   Justice Spiegel explains:

[The defendant’s interpretation] is inconsistent with the principles and norms of s. 15 of the Charter…

 In my view, the defendants’ interpretation tends to discriminate against persons who have a mental disability.

Justice Spiegel’s reasoning about the purpose of the Schedule makes good sense. Subsection (f) of the definition of catastrophic impairment is designed to ensure that people with substantial care needs due to a combination of impairments receive enhanced benefits. Because a combination of physical and psychological impairments can result in substantial care needs, it makes no sense to exclude psychological impairments in determining whole person impairment.

C)           THE AMA GUIDES  

The AMA Guides were never intended to be interpreted like a piece of legislation. Despite the fact that the Ontario government has chosen to use them for compensation purposes, the AMA Guides themselves caution against this:

It must be emphasized and clearly understood that impairment percentages derived according to Guides criteria should not be used to make direct financial awards or direct estimates of disabilities.12

The AMA Guides also state that the rating of impairments is not exact but is based in “estimates.” For these reasons, Justice Spiegel determined that the AMA Guides must be interpreted in a liberal manner:

The next question to be determined is whether, on a proper interpretation of the Guides, an assignment of percentages to psychological impairments is in accordance with the Guides.  In considering this question it is appropriate to give the words “in accordance with” a fair, large and liberal interpretation so as to ensure the attainment of the object of the Act according to its true intent, meaning and spirit.13

Justice Spiegel considered the entirety of the AMA Guides and heard substantial expert evidence about their interpretation.   He determined that the AMA Guides do permit the assignment of percentage ratings to psychological impairments:

Dr. Finlayson testified that while the Guides do not provide ranges of percentages for the psychological impairments set out in Chapter 14, they did recognize that a numeric or ordinal scale might be of use in certain circumstances. They also provided general information regarding how a clinician might determine what percentage is appropriate. They further made the decision to include the percentages from the second edition so that they would be available to clinicians for reference. Dr. Finlayson also stated that he did not think that clinicians had stopped using percentage impairments under Chapter 14. He opined that clinician would use the percentages from the second edition to make their own estimates.

The authors of the Guides note that there are some valid reasons to use ranges of percents for psychological impairments. If this were done, the chapter on mental disorders would be consistent with the Guides chapters for other organ systems.  Another point is that various systems for estimating disability have developed ranges of percentages; if such estimates were not provided in the Guides, the material in the Guides on mental disorders might be ignored.

In my view, given the purpose of the legislation as I have found it, there are powerful reasons for supporting the plaintiff’s interpretation.14

Justice Spiegel also considered the fact that psychological impairments flowing from a brain injury are assigned percentage ratings under the AMA Guides. He found that it would be unfair to allow those impairments to be included in assessing whole person impairment but to exclude similar impairments with a different cause:

If a mental impairment caused by a dysfunction of the brain or nervous system can be included in the calculation of whole person impairment, but a similar psychological impairment under Chapter 14 is excluded, then some people with psychological impairments would be denied much needed benefits, not because they were less seriously impaired, but simply because their impairment is attributed to a different cause. This would be an unreasonable outcome.   Conversely, the plaintiffs’ interpretation produces a reasonable outcome.15

Justice Spiegel’s analysis of the AMA Guides is thorough and well reasoned. His Honour concludes that the Guides do not contain any absolute prohibition on the assignment of percentage ratings to psychological impairments.

D)           THE ANALOGOUS IMPAIRMENT PROVISION

In Desbiens, Justice Spiegel concluded that even if he was wrong about the interpretation of subsection (f) of the definition of catastrophic impairment, that section 2(3) of the Schedule would assist the plaintiff.   That section provided as follows:

2(3)  For the purpose of clauses (1) (f) and (g) an impairment that is sustained by an insured person but is not listed in the [AMA Guides] shall be deemed to be the impairment that is listed in that document and that is most analogous to the impairment sustained by the insured person.16

Justice Spiegel found that section 2(3) applied to both impairments that are not identified in the AMA Guides and to impairments that are identified in the AMA Guides, but do not have a percentage rating assigned to them. Justice Spiegel held that even if it was determined that percentage ratings could not be assigned to psycho-emotional impairments under the AMA Guides, that section 2(3) of the Schedule directs that the psycho-emotional impairment be deemed to be the impairment listed in the AMA Guides that is most analogous for which a percentage rating is applied. Justice Spiegel found that the psychological impairments were most analogous to the mental or behavioural impairments listed in Chapter 4:

I am of the view that it is proper to interpret the words “not listed” [in section 2(3)] as encompassing both impairments that are not identified and impairments that are identified but not assigned any percentage.

The next question is whether the evidence supports the conclusion that the most analogous impairment to Mr. Desbiens’ psychological impairment is the emotional or behavioural impairments listed in Chapter 4.  In my view the evidence of Dr. Finlayson supports an affirmative response to this question.   If this is so, there is no doubt that a percentage may be assigned to the impairment and combined with Mr. Desbiens’ physical impairments in determining his overall whole person impairment.17

FSCO DECISIONS FOLLOWING DESBIENS

The Desbiens decision was not appealed.

The issue of whether psychological impairments can be considered in determining whole person impairment has been raised in a number of FSCO arbitrations and appeals since Desbiens was released.

Every FSCO decision maker who has considered the issue has approved of and followed the decision of Justice Spiegel in Desbiens.18

ARTS v. STATE FARM

In the case of Arts v. State Farm,19(“Arts”) the insurer took the position that Desbiens was wrongly decided.

Mr. Arts was a 21 year old man who suffered injuries in a motor vehicle collision. He suffered multiple skull fractures and a traumatic brain injury. He fractured his right clavicle, right posterior maxillary and suffered soft tissues injuries to the neck, shoulder and back. He developed a visual field defect as a result of his injuries. He also developed psychological impairments resulting in anxiety and depressed mood.

Mr. Arts applied for a determination of catastrophic impairment. State Farm sent him for an insurer’s examination. State Farm’s assessors found that his neuro-muskuloskeletal injuries resulted in a whole person impairment of 23 percent. State Farm’s assessors found that Mr. Arts’ psychological impairments resulted in a 40 percent whole person impairment. When his physical and psychological impairments were combined, Mr. Arts’ whole person impairment exceeded 55%.

Rather than accept Mr. Arts as being catastrophically impaired on the basis of the insurer’s examination, State Farm brought a motion for a determination of a question of law, namely, whether psychological impairments can be considered in determining whole person impairment.

State Farm’s motion was heard by Justice MacKinnon. After reviewing the Desbiens decision, the AMA Guides and the FSCO jurisprudence, Justice MacKinnon concluded as follows:

I find that it is permissible to assign percentage ratings in respect of a person’s psycho-emotional impairments and to combine them with percentage ratings in respect of the person’s physical impairments for the purpose of determining whether the person is catastrophically impaired pursuant to section 2(1)(f) of the Schedule.20

Justice MacKinnon found the reasoning of Justice Spiegel in Desbiens to be “compelling, reasonable and persuasive”.

Like Justice Spiegel, Justice MacKinnon found that the words “impairment” and “combination of impairments” in the definition of catastrophic impairment must be interpreted with regard to the definition of “impairment” in that same section, which includes psychological impairments:

If the legislature’s intention was to exclude psychological impairments from clause (f), the inclusion of the word “physical” before the word “impairment” would easily achieved that purpose.  Subsection 2(1)(f) is modified by the impairment definition in that same section 2.21

Like Justice Spiegel, Justice MacKinnon carefully analyzed the AMA Guides and found that they do permit the consideration of psychological impairments in determining whole person impairment:

When one considers not only pages 301-02 but rather pages 141-2 and the entirety of the AMA Guides which provide no absolute prohibition on the use of percentage ratings for psycho-emotional impairments, it is clear that those Guides recognize it may be necessary to arrive at percentage ratings in appropriate cases in order to provide physicians with informed guidance.

…

The Schedule defines “impairment” to include psychological impairments.   If percentage ratings can be used to categorize mental or behavioural impairments flowing from a brain injury (chapter 4 of the AMA Guides), there is no reason that they cannot also be used to categorize mental or behaviour impairments flowing from a psychological injury.  To interpret the Schedule otherwise would produce an unreasonable outcome.

State Farm sought leave to appeal the decision of Justice MacKinnon to the Divisional Court. The leave to appeal motion was heard by Madame Justice Ferguson on August 20, 2008. As of the date of this paper, no decision has been released on the leave to appeal motion.

Subject to the appeal of the Arts decision, the present law is quite clear that psychological impairments can be considered in determining whole person impairment. The only Superior Court of Justice decisions to consider this matter are Desbiens and Arts.   They both reached the same conclusion.   All of the FSCO decisions on the subject have followed Desbiens.  

APPENDIX I