John McCarthy

The insured claimed catastrophic impairment benefits following a motor vehicle accident, relying on a positive Designated Assessment Centre (CAT DAC) finding.

The insurer denied the benefits and sought to challenge the CAT DAC finding in the dispute resolution process.

The arbitrator ruled that the insurer was precluded from doing so, finding that the Court of Appeal's comments in Fernandes regarding remedies at the Commission were obiter.

On appeal, the Director's Delegate rescinded the arbitrator's order, holding that Fernandes is binding and establishes that insurers may challenge a CAT DAC finding within the dispute resolution system.

The applicant was injured in a motor vehicle accident and determined to have suffered a catastrophic impairment by a Designated Assessment Centre (CAT DAC).

The insurer refused payment of supplemental benefits and sought to challenge the CAT DAC determination as a defence in the arbitration.

The arbitrator held that the insurer is precluded from collaterally attacking the catastrophic determination made by the CAT DAC, as the dispute resolution scheme under the Insurance Act forms a complete code.

The insurer may only challenge the appropriateness of specific benefits claimed as a result of the catastrophic designation.