Something Good For Claimants - For Now

Toronto Personal Injury Lawyer Albert Conforzi: On September 27, the Ontario Court of Appeal issued a long awaited ruling dealing with the case of Pastore v. Aviva Insurance Company.

The case dealt with the interpretation of the definition of catastrophic impairment in the Statutory Accident Benefits Schedule (SABS). A catastrophic impairment designation opens up an extended range of benefits for people injured in an accident. These benefits include medical, rehabilitation, attendant care, and housekeeping benefits.

Unless you work in the legal or insurance industry, or know someone who has been involved in a catastrophic injury case, you may be surprised to learn that being declared "catastrophically impaired" does not result in an automatic payment of ANY sort. The only thing that it does is open the door to qualify for further benefits beyond the non-catastrophic limits.

In Mrs. Pastore's case, she had suffered an ankle fracture when she was struck by a car. The injury later resulted in knee problems due to altered gait, and led to disabling chronic pain. In turn, the chronic pain resulted in psychological impairments. She was declared by physicians to have suffered a marked catastrophic impairment due to her mental and behavioural disorder in the realm of the activities of her daily life.

The question was, could only one area of marked impairment be enough to be catastrophically impaired, or do you need two, three or four?

The insurer Aviva disputed the designation at every level possible, resulting in three separate decisions before the Court of Appeal. The thrust of their argument was that the AMA guides identify 4 areas of behavioural disorders. Mrs. Pastore was found to have a marked impairment in one area only. The question was, could only one area of marked impairment be enough to be catastrophically impaired, or do you need two, three or four? The insurance company argued that a finding of marked impairment in only 1 area was simply not enough.

In its unanimous decision, The Court of Appeal found that the legislation supported Mrs. Pastore's version, that "a marked mental and behavioral impairment" does indeed mean that one is enough.

Now that the insurance industry has lost this important case, I fully expect the insurers to lobby the government for a change to the SABS to reflect their own interpretation. Historically, the government has caved to insurer demands. Though it is difficult to understand why the government would enter the debate when the courts have commented, in my opinion the insurance industry lobby is very strong and very intent on eliminating benefits payable to claimants to the greatest extent possible.

We shall see whether history will repeat itself.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays.