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Pastore V. Aviva Canada Inc. - definition of catastrophic impairment broadens, victory for the plaintiff's bar
The Ontario Court of Appeal finally released its decision in Pastore v. Aviva Canada Inc. It’s been referred to as a “landmark decision on chronic pain”.
The OCA ruled that chronic pain is a psychological condition that can produce a catastrophic impairment, thereby entitling accident victims to enhanced medical benefits.
The unanimous decision of the Court means will allow claimants with severe psychological impairments to access much-needed benefits beyond standard accident benefits.
The Court of Appeal overturned the lower court’s decision that would have denied the plaintiff, Anna Pastore access to extended benefits.
Pastore v. Aviva concerns a woman who was struck as a pedestrian in November 2002 and injured and broke her left ankle, which never healed properly, leading to numerous surgeries and an eventual knee replacement.
Prior to the accident, she was the primary caregiver to her husband of over 35 years, who was receiving chemo-dialysis. The decision states that she is almost completely dependent on others for her most basis personal care needs.
Pastore applied for catastrophic determination in May 2005.
Pastore was assessed by a team of medical assessors to determine if she was catastrophically impaired. It was found that she had catastrophic impairment due to mental or behavioural disorder. She had class 4 or ‘marked impairment’ in terms of her activities of daily living and assigned her a class 3 (moderate impairment) with respect to social functioning, concentration, persistence and pace and deterioration or decompensation in work or work-like settings.
Aviva did not accept the findings of the assessment centre and this led to mediation and arbitration.
One major issue was whether marked impairment in one category was enough to lead to a catastrophic designation.
The arbitrator and the Director’s Delegate upheld the decision of the assessment centre and found that Pastore was catastrophically impaired. Aviva appealed this decision and the Divisional Court sided with Aviva, stating that the Guides portion of the Statutory Accident Benefits Schedule (SABS) requires all four categories to be considered as marked impairments in order for a person to be deemed as catastrophically impaired.
The Ontario Court of Appeal disagreed and overturned the Divisional Court’s decision, siding with the original decision, stating that the American Medical Association’s Guides to the Evaluation of Permanent Impairment language did not specifically require all four categories to be considered marked impairments for a catastrophic impairment designation.
The role of pain was addressed within the context of the marked impairment test. The OCA concluded that a cumulative approach should be taken where it is not possible to factor out the impact of discrete physical impairment and associated pain limitations.
What the court is saying, is that pain can be considered within the marked test in cases where the pain is not cleared related to physical causes, but may be related to a mental disorder.
Aaron Waxman & Associates is a Toronto Personal Injury Law Firm that handles personal injury claims, including catastrophic cases.
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