Catastrophic Impairment - Onus on Insured to Prove Impairment
Nancy Stewart was injured severely in a motor vehicle accident in 2005. She brought a motion for a declaration of catastrophic impairment but failed to provide the expertise to support her claim. The Arbitrator denied her motion.
State Farm agreed Ms. Stewart was entitled to some benefits and, as of February 29, 2012, had paid her $281,046.28. However, State Farm argues Ms. Stewart has not established “catastrophic impairment” and is not entitled to the enhanced medical and rehabilitation benefits up to one million dollars.
In the case at bar, expert evidence will be critical in determining whether or not Ms. Stewart is “catastrophically impaired”. There is potential for conflicting evidence from a number of expert witnesses as to physical, psychiatric and psychological impairments. There is a significant gap in the evidence with respect to psychiatric impairment, although there is some evidence from a psychologist regarding psychological impairment. Evidence from an expert in applying the AMA Guides may also be required. The motion record presented by Ms. Stewart in this case, even if supplemented by hearing some oral evidence on discreet issues, would not have enabled Madam Justice Blishen to achieve the “full appreciation” of the evidence and issues required to make a dispositive finding of “catastrophic impairment”.
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