Ms. Julia Leary

The insurer appealed an arbitration decision awarding the insured ongoing income replacement benefits beyond the 104-week mark.

The insurer argued the Arbitrator erred in law by qualifying a vocational evaluator as an expert witness and allowing her to opine on the insured's physical and psychological barriers to employment.

The Director's Delegate dismissed the appeal, finding no error in the Arbitrator's application of the Mohan criteria to qualify the vocational evaluator.

The Delegate held that a vocational expert may consider an applicant's symptoms in determining whether they can perform a job, which does not constitute rendering a medical opinion.

The applicant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated her income replacement benefits.

The applicant claimed ongoing entitlement due to physical pain and severe psychological impairments, including panic disorder and claustrophobia, which prevented her from using elevators, public transit, or driving.

The arbitrator found the applicant to be a credible witness and accepted the evidence of her treating psychiatrist, family doctor, and a vocational assessor over the insurer's DAC assessors.

The arbitrator concluded that the applicant suffered a substantial inability to perform the essential tasks of her pre-accident employment for the first 104 weeks, and a complete inability to engage in any suitable employment thereafter.

The insurer was ordered to pay ongoing income replacement benefits.