Mr. S. Ferland

The insurer appealed an arbitrator's preliminary decision finding the insured catastrophically impaired.

The insurer argued the arbitrator lacked jurisdiction to make a stand-alone catastrophic impairment determination when no specific accident benefits were claimed.

The Director's Delegate dismissed the appeal, holding that a catastrophic impairment determination is a necessary gateway issue within an arbitrator's jurisdiction under the Insurance Act.

The Delegate also found no error of law in the arbitrator's preference for the insured's expert evidence over the insurer's experts, nor in the arbitrator's application of the AMA Guides regarding the assessment of pain in mental and behavioral disorders.

The applicant was injured in a motor vehicle accident and sought a determination that he sustained a catastrophic impairment due to mental and behavioural disorders.

The insurer brought a preliminary motion to dismiss the arbitration, arguing that a catastrophic determination without a claim for specified benefits was outside the arbitrator's jurisdiction.

The arbitrator dismissed the motion, finding jurisdiction to determine the status.

On the merits, the arbitrator preferred the evidence of the applicant's experts, finding that the insurer's psychiatrist failed to follow the AMA Guides by using a WSIB scale instead.

The arbitrator concluded the applicant suffered a Class 4 (Marked) impairment in deterioration or decompensation in a work or work-like setting, meeting the catastrophic impairment threshold.

The applicant's request for a special award was denied as no specific monetary benefits were unreasonably withheld.