Dr. Maselle Virey

The applicant sought judicial review of a decision by the Director's Delegate, which overturned an Arbitrator's finding that he suffered a catastrophic impairment as a result of a 2013 motor vehicle accident.

The applicant had previously been involved in two accidents in 2002.

The Director's Delegate found that the applicant was already catastrophically impaired before the 2013 accident and that the Arbitrator erred by applying the material contribution test instead of the 'but for' test.

The Divisional Court granted the judicial review, finding the Director's Delegate's decision unreasonable because it relied on an unestablished fact that the applicant was already catastrophically impaired.

The Court also held that the Arbitrator's use of the material contribution test was appropriate in circumstances involving multiple accidents where it is impossible to determine which accident caused the impairment.

The Applicant was injured in a motor vehicle accident in 2013 and sought statutory accident benefits from the Insurer, claiming he suffered a catastrophic impairment.

The Applicant had a history of severe pre-existing psychological and physical impairments from prior accidents in 2002.

The Insurer denied the catastrophic impairment designation and various medical benefits, arguing that any impairment was due to the pre-existing conditions.

The arbitrator found that the 2013 accident materially contributed to the Applicant's psychiatric condition, worsening his impairment to a Class 4 marked impairment in activities of daily living.

The arbitrator concluded the Applicant suffered a catastrophic impairment and awarded the disputed medical benefits and examination costs, finding them reasonable and necessary for pain relief and assessment.

The claim for a special award was dismissed, but the Insurer was ordered to pay the Applicant's arbitration expenses and interest on overdue benefits.