Double Counting to Capture a Whole Person Impairment[et_pb_section bb_built=”1″][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.9″]
In Security National Insurance Co. v. Allen, Justice Fragomeni of the Divisional Court upheld the decision of Director Delegate Blackman’s , finding that when an organic brain injury and a psychological disorder separately result in emotional or behavioural impairments, they are both to be rated and then combined for the purpose of determining a WPI rating.
At arbitration, the issue was whether the claimant had sustained a 55% Whole Person Impairment (WPI) pursuant to the SABS. The Arbitrator concluded the claimant had a 52% WPI rating and therefore was not catastrophically impaired. In reaching this conclusion the Arbitrator did not provide a a Chapter 4 rating, finding that the Chapter 14 rating captured any mental and behavioral impairment. On appeal by the insured, Director’s Delegate Blackman rejected the insurers argument that rating under both Chapter 4 and Chapter 14 was double counting and remitted the questions of the insured’s rating for brain injury under Chapter 4 and the medication rating back to arbitrator for determination. He confirmed the Arbitrator’s other WPI ratings. With respect to brain injury and double counting, Director’s Delegate Blackman relied upon clause 2(1.2)(f) of the Schedule, which speaks of “an impairment or combination of impairments” – not “symptoms” as was used by the Arbitrator. Director’s Delegate Blackman decided that it was incumbent upon the Arbitrator to provide separate ratings under both Table 2 and Table 3 of Chapter 4 when one rating related to a Chapter 14 impairment. The more severe of the two would represent the appropriate level of cerebral impairment. This number would then be combined with the other impairment ratings using the Combined Values Chart.
On Judicial Review, the Divisional Court applied the standard of review of reasonableness to Director’s Delegate Blackman’s decision given it was made in the context of a specialized regime and one in which the Director’s Delegate has expertise.
The Court concluded that his decision was reasonable with regard to all three issues.
The Court also held that Director’s Delegate Blackman reasonably applied the two general principles that the Guides should be given a broad and liberal interpretation andhat whether a person has sustained a catastrophic impairment is an adjudicative and not a medical determination.
This case provides some further clarification on the issue of “double counting” in the context of WPI ratings. .
See Security National Insurance Co. v. Allen, 2017 ONSC 6779[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section]