“I also accept the ratings provided by Omega in the summary prepared by the executive author, Dr. Harold Becker. TD challenged the fact that where Dr. Robinson or other assessors provided a range of percentages drawn from the interpretation of the AMA Guidelines, Dr. Becker used the highest percentage in the range.
TD alleged that the ratings flowed not from a proper assessment but rather from an arbitrary choice arising from Dr. Becker’s desire to avoid past criticisms of his ratings in appeals concerning his catastrophic impairment assessments. TD referred to the decision of Adjudicator Susan Sapin in Applicant and Peel Mutual Insurance Company in which Adjudicator Sapin held that for an assessor to simply assign a range, or to arbitrarily choose the highest number in the range on principle, is to abdicate the exercise of clinical judgement required under the AMA Guides and that providing a range is not helpful to adjudicators. She referred to another arbitration case in which an arbitrator rejected the use of ranges of impairment because of the direction in the AMA Guides to use clinical observation, training, judgment, experience, skill and thoroughness of evaluation to derive as precise a rating for an impairment as possible. [see Ibid. at p. 7, citing Moser and Guarantee Company of North America [FSCO A13-000812], September 26,2014.]
Dr. Becker explained that he used the top number in the range to capture the fact that the impairments were variable and that it was appropriate to give any benefit of dispute as to the appropriate range to the impaired party. He testified as to the difficulties facing medical doctors in applying numbers, where there is discretion given throughout the AMA Guides. The parties provided me with cases on catastrophic impairment and the difficulties facing arbitrators by reason of the Schedule’s dependence on the application of the AMA Guides is reflected in those decisions. The cases establish that the determination of the impairment ratings is a matter of adjudication to be based on the evidence as a whole, including that of the assessors whose clinical knowledge and expertise is applied to diagnose the impairments and correctly apply the AMA Guides to the individual. The arbitrator is obliged to assess the evidence of the experts and all the evidence in the hearing and make determinations under the statutory scheme, having in mind the underlying principles of interpretation of accident benefit statutory provisions. I am satisfied that each of the assessors has applied their clinical judgment, skill, knowledge and expertise to the task in accordance with the AMA Guides. Further, I am satisfied that Dr. Becker is an expert in the application of the AMA Guides and that he has reviewed with a critical eye the assessments done by all the assessors in the course of preparing his executive summary and the Rebuttal Report. I am satisfied that he has applied his best judgment to the issue of the impairments within the structure of the AMA Guides. Dr. Robinson testified that in assessing which number to use within a range the factors are the severity, frequency and persistence of the impairments and that within the Mental Status and Sleep and Arousal impairments, these will fluctuate. On the evidence taken as a whole, I agree with Dr. Becker that the resolution of the issue of what specific number to use for rating the impairments is satisfied on the evidence in this case with use of the highest number in the range.
I do not attribute anything improper in Dr. Becker’s explicit efforts to comply with the statutory scheme and the direction given in the legislation and by the courts on the appropriate application of the AMA Guides to any specific fact situation.”