Kellerman-Bernard v. Unica Insurance Inc. (20-002064)

In 2016, the claimant’s child was involved in a motor vehicle accident. The claimant, who was not involved in the accident and did not witness the accident, sought accident benefits in 2016 based on alleged psychological and mental injuries as a result of her child’s accident. In 2018, the claimant submitted an application for determination of catastrophic impairment. A preliminary issues hearing was held on the following issue: Can an applicant not involved in an accident meet the criteria for CAT impairment as defined by the SABS? The insurer did not dispute that the claimant was an insured person under the policy and was eligible to claim accident benefits, but submitted that the claimant was not entitled to apply for CAT because she was not involved in the accident, and thus her injuries were not caused by an accident as defined in the SABS and she did not meet the criteria for CAT impairment. The claimant submitted that she was an insured person under the SABS who sustained psychological and mental injuries caused by the accident for which she was eligible to apply for CAT designation and CAT benefits. The claimant submitted that there was no difference in her injuries being “caused by an accident” or “as a result of an accident” and that there is no requirement in the SABS for an insured person to have been involved directly in an accident to apply for CAT impairment designation. Vice-Chair Farlam found that the claimant did not meet the criteria for CAT in the SABS because her alleged injuries were not “caused by an accident.” Vice-Chair Farlam held that the phrase “caused by an accident” was purposely used in the SABS to restrict entitlement to CAT to persons who directly suffer injuries caused by an accident because the legislature has chosen to treat access to enhanced CAT benefits more restrictively. Vice-Chair Farlam found that because the claimant did not witness the accident and was not directly involved in the accident, she was unable to meet the threshold test for CAT designation required by section 3(2). The claim for CAT designation was dismissed.