Taylor and Pembridge Insurance. Arbitration, 2014-06-11, Reg 403/96. FSCO 4218.

Taylor and Pembridge Insurance. Arbitration, 2014-06-11, Reg 403/96. FSCO 4218.

Summary

The Applicant was injured in a motor vehicle accident on September 10, 2009. She applied for and received statutory accident benefits from Pembridge Insurance Company of Canada (“Pembridge”), payable under the Schedule.

The Applicant exhausted medical and rehabilitation benefits under her policy. She then “applied to Pembridge Insurance for a determination that she sustained a catastrophic impairment (“CAT”)” and was denied.

Legal Issue

“Did the Applicant sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Schedule?”

Law

The Schedule defines “impairment” as a loss or abnormality of a psychological, physiological or anatomical structure or function.”

“Under clause 2(1.2)(f) of the Schedule, a catastrophic impairment is an impairment or combination of impairments that, in accordance with the Guides, results in 55 percent or more impairment of the whole person (WPI).”

Under clause 2(1.2)(g) of the Schedule a catastrophic impairment is an impairment that, in accordance with the Guides, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to a mental or behavioural disorder.”

Decision

The Applicant did not sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Schedule.”

I find that Ms. Taylor did not sustain a catastrophic impairment as a result of the accident as defined in clauses 2(1.2)(f) and (g) of the Schedule because she does not meet the 55% WPI threshold.”

Analysis/Significance

The significance of this decision lies in the arbitrator being given the ultimate power to rule as a trier of fact and trier of law in coming to a decision regarding the future income of a person with perceived catastrophic injuries.

While the medical experts are called for both sides to establish the level of the Applicant’s permanent injuries, the arbitrator is left to make the decision of which expert opinion he or she will accept. In this case, the arbitrator chose a combination of the expert’s opinions to come to a decision.

Lacey Appleton is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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