What Constitutes Psychological and Physical Brain Impairment?

Components of a Brain Injury: Apportionment, Double Counting and Allen

Understanding Brain Impairment


October 7, 2019 01:30 PM

Under both the old and new legislation, an Applicant will meet the legal definition of catastrophic impairment pursuant to the SABS if it is determined that he/she has suffered a combination of physical and psychological impairments that amount to a whole person impairment (WPI) in excess of 55%.

The AMA Guides provide direction when assigning impairment ratings to calculate a WPI. When combining physical and psychological impairment ratings for brain injury, the relevant chapters are Chapter 4 (nervous system) and Chapter 14 (mental and behavioral disorders).

The Overlap of Psychological and Physical Injuries in Brain Injury

The inherent difficulty with brain injury is the interplay between the physical and psychological components of the injury. To simplify, it is clinically indistinguishable to determine whether an applicant's brain injury causes depression or whether the depression results from other symptoms of brain injury such as sleep deprivation or headaches.

In the 2014 decision Moser and Guarantee, the Arbitrator commented on the overlapping analysis of determining impairment ratings:

In Chapter 4, the evaluator assesses activities of daily living, daily social, and daily interpersonal functioning. In Chapter 14, the evaluator assesses activities of daily living, social functioning, concentration, persistence and pace, and adaptation (at page 320). The wording, descriptors, and text anchors suggest that the assessment of Chapter 14 is indeed wider than that of Chapter 4.

In Moser, the arbitrator subtracted 2% of the Applicant's cognitive impairment due to closed head injury and then combined the remainder with the WPI based on the applicant' s mental and behavioral disorders.

This type of apportionment of brain injury impairment has not been followed by LAT decision makers or the divisional court in subsequent decisions.

In fact, the case law has explicitly allowed for separate impairment ratings under chapters 4 and 14 where an injured individual suffers both a physical brain injury and a separate psychological impairment resulting in mental and behavioral issues. In the 2016 LAT decision of 16-00013 and Peel, the Arbitrator did not reduce WPI ratings because of any possible overlap:

I acknowledge that it can be difficult to tease out psychological causes from neurological ones when assessing a mental status impairment. The overlap between Chapters 4 and 14 raises the possibility of double counting,and therefore, overestimating the impact of an impairment. However, in this case I find the specific diagnosis of Cognitive Disorder as well as distinct psychological disorders supports a conclusion that the applicant's mental impairments should be accounted for and rated under both chapters, as long as the ratings are apportioned between the two chapters. In this case, I find not including the 8% mental status impairment under Chapter 4, as Dr. Valentin has done, amounts to ignoring — and underestimating - the contribution of the concussion to her mental status impairment.

The Peel decision is authority that the difficulty separating the effects of brain injury from those emanating from mental or behavioral disorders should not be construed as double counting.

The decision of Allen and Security National further clarified the question of double counting in a case where an injured individual suffers both a physical brain injury and a separate psychological impairment.

In Delegate Blackman's decision, upheld by the Ontario Divisional Court, the following was stated with respect to the question of double counting:

A significant issue in this catastrophic impairment appeal concerns an insured person injured in a motor vehicle accident who suffers both a physical brain injury and a separate psychological mental and behavioral disorder. If both the organic brain injury and the psychological disorder separately result in emotional or behavioral impairments, are both the physical brain injury and the psychological disorder each to be rated for such impairments and then combined as provided for in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the "Guides")?

My answer is yes.

Allen, therefore, stands for the principle that where there is both a psychological disorder and a brain injury, those issues are to be separately rated and combined for the purpose of determining WPI.

Chapter 14 Impairments Should not be Apportioned

While the Divisional Court has provided some clarity with respect to combining chapter 4 and 14 impairment ratings, the issue of apportionment remains live. Particularly, when an applicant is provided impairment ratings in Chapter 4 Table 3, Chapter 4 Table 2 and Chapter 14.

However, an analysis of the Pastore decision stands for the proposition that Chapter 14 impairments should not be apportioned:

In Pastore, the mental or behavioral disorder in question was a pain disorder associated with both psychological factors and a general medical condition. In that case, I was not persuaded, regarding a "mental or behavioral disorder," that it was necessary to tweeze out of the mental or behavioral disorder those parts that were purely psychological from those that were not, when the pain disorder encompassed both.

Brain injury cases are analogous to pain disorder cases in that there are overlapping mental/behavioral and neurological causes to impairment. Thus, following Pastore and Allen, to the extent that there is overlap between traumatic brain injury and a psychological disorder, there should be no requirement to distinguish them in Chapter 14. Doing so would be to underestimate the extent of an Applicant's impairments from traumatic brain injury.

Pastore confirmed that the very definition of "catastrophic impairment' was intended by the legislature to be "inclusive and not restrictive. "Given the first-party contract and associated duty to adjudicate an Applicant's claim in good faith, it is incumbent on insurers to assess impairment ratings fairly.

Counsel for an Applicant must advocate for fairness and proportionality when asking Arbitrators to determine impairment ratings for brain-injured applicants with overlapping psychological and physical impairments.

Related Articles

A Record Settlement

by Justin Smulison

Rouda, Feder, Tietjen & McGuinn

A Record Settlement

Settlement Exposes Risk of Surgical Centers

by Justin Smulison

Josh Koskoff hopes his firm's latest wrongful death settlement will encourage surgical centers to put systems in place that protect patients’ safety.

Koskoff Koskoff & Bieder's Injury Prevention

How to Identify a Medical Expert for Trial

by Rose Ríos

Things to look for and things to avoid when choosing a medical expert for trial.

What Makes a Strong Medical Expert Witness

Six Things to Know When Injured at Work

by Nicholas Pothitakis

Work injuries result in many questions and concerns by employees who may be facing the situation for the first time

Six Things to Know When Injured at Work

Public Health Reform: What does the future look like for patients?

by Vanessa Mellis

Increased government stewardship and a stronger user orientation are two of the key elements shaping this process.

Public Health Reform

The Advocate for the Toughest Battles

by Best Lawyers

Tom Girardi takes on industry titans to win billions for the injured.

Girardi Keese

A Rebel with a Cause

by Margaret Pierce

Eichen Crutchlow Zaslow & McElroy: A Firm Fighting for the Injured.

Personal Injury Litigation

Trending Articles

How Palworld Is Testing the Limits of Nintendo’s Legal Power

by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The U.S. Best Lawyers Voting Season Is Open

by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer

by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

2021 Best Lawyers: The Global Issue

by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The Upcycle Conundrum

by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Best Lawyers Voting Is Now Open

by Best Lawyers

Voting has begun in several countries across the globe, including the United States, the United Kingdom and Europe. Below we offer dates, details and answers to voting-related questions to assist with the voting process.

Hands holding smartphone with five stars above phone

Inflation Escalation

by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards

by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

Presenting the 2024 Best Lawyers Family Law Legal Guide

by Best Lawyers

The 2024 Best Lawyers Family Law Legal Guide is now live and includes recognitions for all Best Lawyers family law awards. Read below and explore the legal guide.

Man entering home and hugging two children in doorway

Announcing the 2023 The Best Lawyers in Canada Honorees

by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots