The Court of Appeal recently considered the issue of when interest starts to accrue under the Statutory Accident Benefits Schedule in situations where there is a disputed catastrophic impairment designation (“CAT”). In Van Galder v Economical, the insurer paid attendant care benefits and housekeeping/home maintenance benefits until the two year mark and stopped at that time based on the fact that the claimant was not catastrophically impaired.

A few years later, after the insurer completed its own CAT assessments, it agreed that the plaintiff was catastrophically injured, and retroactively paid attendant care and housekeeping/home maintenance pursuant to its obligations under the 2010 SABs, which were amended to oblige an insurer to make retroactive payments without regard to when the insured person actually became catastrophically impaired. The question remained though – what about interest? Was it due retroactively as well, or not payable because the benefits were not “overdue” until there was a CAT designation?

Ultimately, the Court of Appeal deferred to a finding of fact that the original applications court Judge made that the claimant had been catastrophically impaired since the accident. Accordingly, the applications court Judge found that the benefits ought to have been paid right from the date they were originally terminated (at the 104 week mark). The Court of Appeal did not allow the insurer to adduce fresh evidence to counter this conclusion by the original Judge. The Court of Appeal reiterated, as did the original applications court Judge, that this decision was made on the “narrow factual situation before the Court” (paragraph 29 of the original decision) and was not “to say that interest will always be overdue immediately after a Catastrophic Injury Determination.”

Accordingly, while the case has some instructive commentary on file handling, the overall value of the case as a precedent will depend on the factual record put before the trier of fact in subsequent cases.