Adjudicator Deborah Neilson of the LAT has held that an Applicant’s neuroprosthesis should have been turned off or “eliminated” during an assessment for catastrophic impairment determination, impacting the Applicant’s whole person impairment rating (“WPI”) under the AMA Guides leading to a finding that she is catastrophically impaired.
In Ferlisi v Allstate, the Applicant was involved in a motor vehicle accident on July 4, 2015 and developed chronic regional pain syndrome (“CRPS”) as a result of her injuries from the accident. The Applicant had a spinal cord stimulator (“SCS”) surgically implanted into her spine to reduce the pain she experiences from CRPS. The Applicant testified the SCS reduces her pain from 10/10 to 3/10. The SCS can be turned on and off by a remote control that the Applicant carries with her.
The Applicant applied to her Accident Benefits insurer, Allstate Insurance Company (“Allstate”) for CAT determination pursuant to the Statutory Accident Benefits Schedule (the “Schedule”). To be found catastrophically impaired under Category 7 of the Schedule, an Applicant must prove on a balance of probabilities that she sustained a 55% or higher WPI of her combined physical and psychological impairments. The CAT determination must be found in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”), 4th edition, 1993.
The parties disagreed on the Applicant’s WPI percentage to be applied in addressing her CRPS, and whether the Applicant should have been assessed with the SCS switched on or off. The Applicant’s expert, Dr. Sharma assessed the Applicant’s gait at 40% WPI, with the SCS switched off. Allstate’s expert, Dr. Oshidari left the SCS switched on and assessed the Applicant’s gait at 20% WPI. The experts disagreed as to the Applicant’s gait derangement under Chapter 3, Table 36 of the Guides. If Dr. Sharma’s WPI percentage is used, the Applicant would be found to have over 55% WPI and catastrophically impaired.
Adjudicator Neilson had to address whether the Applicant’s gait should have been assessed with the SCS turned on or off. Adjudicator Neilson found the Applicant’s SCS to be a prosthesis as contemplated by Section 2.2 of Chapter 2 of the Guides, as it is used to disrupt pain signals and is surgically implanted. Section 2.2 outlines the rules for evaluating a person with prosthesis, and states that if an individual’s prosthesis or assistive device can be removed or its use eliminated relatively easily, the organ system should be tested and evaluated without the device. The Applicant submitted that this meant she should be assessed with her SCS turned off.
Dr. Oshidari testified that the Guides say nothing about the prosthesis being stopped, only removed, and the SCS cannot be removed easily because it is surgically implanted. Dr. Oshidari explained that turning off the SCS is not the same as eliminating the use of the SCS, because it is a neuroprosthesis and the 4thedition of the Guides were issued prior to the advent of the use of neuroprosthesis.
Adjudicator Neilson sided with the Applicant and concluded that the Applicant should have been assessed with the SCS turned off. The wording of the Guides is broad enough to include new technology, and the Guides as formulated in 1993 were adopted into the Schedule in 2010 and again in the 2016 revision even where new editions of the Guides have been released subsequently. Adjudicator Neilson interpreted the plain and ordinary meaning of the wording in the Guides, “removed or its use eliminated relatively easily” to include the stoppage of the use of the device. Further, eliminating the use of the device can be done by turning it off, and as the Applicant’s SCS could be turned off accidentally or without her knowledge, this was further reason to keep it turned off during the assessment. By including the language of “easy elimination” of the use of prosthesis, the authors of the Guides contemplated similar situations to the Applicant’s, where prosthesis cannot be removed but its effects can be stopped without risking the overall health of the person examined.
Adjudicator Neilson concluded the Applicant to have over 55% WPI and to be catastrophically impaired.
While not binding on other adjudicators of the LAT, this decision provides an interesting perspective on the impact of neuroprotheses on CAT assessments and the WPI rating. Further, it distinguishes SCS from pacemakers in the context of s 2.2, Chapter 2 of the Guides, despite similarities in the devices including being surgically implanted and charged by battery held to the skin. As the SCS does not risk the user’s death if turned off, unlike a pacemaker, the SCS was found by this Adjudicator to be easily eliminated where it cannot be removed pursuant to the Guides, and therefore should have been turned off during assessment. The government purposely maintained the use of the 4th edition for WPI scores even when advancing to the 6th edition for mental and behavioural impairment scores in the most recent amendments to the SABS, and presumably did so because of the familiarity and comfort practitioners had developed in utilizing the rating system, even where those rating systems have bene enhanced with the 5th and 6th editions. Perhaps unwittingly, the government’s decision has caused the medical advancement of utilizing neuroprosthesis to not be recognized during a rating assessment.
Laila Khalil is an associate at ZTGH and author of this blog. If you have a question about this decision or a similar issue on a file, please reach out to Laila at 416-777-5243.
