Our winter newsletter featured a paper by noted psychologist, Dr. Brian E. Levitt, who wrote about the issue of catastrophic impairment and referenced a case before the court of appeal, Pastore v. Aviva. We now have the results of that appeal. It is good news for thousands across the province hoping it would set a precedent for receiving enhanced benefits reserved for claimants who suffer catastrophic impairments.
Pastore first denied accident benefits under SABS
Ms. Anna Pastore was injured in a motor vehicle accident in November 2002. She broke her left ankle, which never healed properly. This led to numerous surgeries and left her with chronic pain. In addition, Ms. Pastore also suffered a psychological impairment. In order to receive payment of accident benefits under the SABS, in 2005 Pastore applied for catastrophic impairment. The insurance company, Aviva Canada, did not accept the findings and Ms. Pastore and Aviva entered into arbitration to resolve disputes.
Both the FSCO Arbitration and the Appeal decided that an insured—in this case Pastore—could be deemed catastrophically impaired if in accordance with Section 2 (1.1)(g) of the SABS, she suffered a marked behavioral or mental impairment in one of the four functional domains outlined in the AMA Guidelines (4th): ADL; social functioning; concentration, persistence and pace; or deterioration in work or work-like settings.
Upon judicial review to the Divisional Court of Ontario in 2011, Justice Lederer writing for the majority, found that under Section 2(1.1)(g) of the SABS it is not sufficient to have a marked impairment in only one domain of function.
Justice Lederer also found that in Ms. Pastore’s case the assessors and the arbitrator had combined physical and psychological impairments to arrive at the marked impairment of function under section 2 (1.1)(g) of the SABS. Justice Lederer found that only behavioral or mental impairments should be considered.
In short, Pastore lost her appeal to the Divisional Court.
New precedent for catastrophic impairment
Thankfully, on September 27, 2012 the Ontario Court of Appeal (OCA) overturned the Divisional Court and restored the FSCO Decision of Directors Delegate Evans. In the process the OCA made it clear that the FSCO decision was reasonable and should be accorded significant deference upon any appellant review.
It is an excellent decision. The ruling provides a more defined framework on how to interpret the statute and guidelines with respect to the definition of catastrophic impairment. In particular, it addresses chronic pain and says that such pain can be present with a psychological disorder, with or without physical causes.
There are literally thousands of persons across Ontario waiting to have their case resolved. The OCA decision will serve as a precedent for moving these cases forward with the expectation that it will then grant more people access to enhanced benefits reserved for claimants who suffer catastrophic impairments. This will allow those most in need to obtain the care they require to improve their quality of life and independence.
Can insurance companies appeal the decision?
Insurance companies could appeal the decision to the Supreme Court, although this is not likely.
Recent political changes in Ontario will also delay insurers from taking immediate action. Up until October 15, insurance companies might have appealed to the provincial government to change the regulations. This is not going to happen any time soon, given the fact that the Ontario Legislature was unexpectedly prorogued before the close of October 15. All scheduled committee hearings and all other legislative business is now cancelled, and we could even face an election sometime next year.