McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm




Articles and Publications

Claimant can meet one definition of catastrophic impairment but not the other: Pastore v. Aviva


Pastore v. Aviva, FSCO A04-002496, involved a claimant, Anna Pastore, who was a pedestrian involved in a motor vehicle accident on November 16, 2002. She suffered a fractured left ankle that required multiple surgeries and claimed that as a result of her left ankle injury she overcompensated on her right side which resulted in pain to her right knee and right ankle. In September of 2007, Ms. Pastore had a right knee replacement and continued to claim that all her surgeries were as a result of the November 16, 2002 motor-vehicle accident.

The matter proceeded to Arbitration on a number of issues including whether Ms. Pastore suffered a catastrophic impairment as defined by paragraphs 2(1.1)(f) and/or 2(1.1)(g) of the Statutory Accident Benefits Schedule—Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended ("the Schedule"). Paragraph 2(1.1)(f) allows for a catastrophic determination for an impairment or combination of impairments that result in 55 per cent or more impairment of the whole person, while 2(1.1)(g) states that an impairment that results in a class 4 impairment (marked impairment which means that the impairment significantly impedes useful functioning) or class 5 impairment (extreme impairment which means that impairment levels preclude useful functioning) due to mental or behavioural disorder may result in a catastrophic determination.

According to the Schedule, an impairment is defined to be a "loss or abnormality of psychological, physiological or anatomical structure or function." Both paragraphs 2(1.1)(f) and 2(1.1)(g) required that an applicant be evaluated pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 ("the Guides)."

Arbitrator Nastasi considered Ms. Pastore’s physical complaints in relation to 2(1.2)(f) and determined that her combination of impairments did not result in a 55 per cent or more impairment of the whole person according the Guides. In the alternative, the Arbitrator determined that Ms. Pastore had sustained a catastrophic injury in accordance with clause 2(1.1)(g) in that she had suffered one class 4 marked impairment in terms of her activities of daily living and recognized Pain Disorder.

The matter was appealed on the issue of whether one marked impairment was adequate to meet the definition of catastrophic pursuant to 2(1.1)(g). The appellant, Aviva, argued that the Arbitrator erred in finding that Ms. Pastore suffered marked impairment in only one of the four areas of functioning rather than suffering a class 4 or 5 impairment overall in all of the four assessment areas. The appellant stated that the Arbitrator’s decision led to an "absurd result" in that (a) the Arbitrator found that Ms. Pastore’s physical impairments by themselves were not catastrophic (b) the Arbitrator found that Ms. Pastore’s physical and psychological impairments, when combined, were not catastrophic, yet (c) when the Arbitrator considered Ms. Pastore’s psychological impairments by themselves, there was a finding that Ms. Pastore was catastrophically impaired.

Delegate Lawrence Blackman opined that there was no inconsistency in an insured person meeting the (g) definition of catastrophic impairment but not meeting the definition of catastrophic impairment in (f) and confirmed that there was no finding that Arbitrator Nastasi’s erred in law in her conclusion. Arbitrator Nastasi’s decision was confirmed on Appeal.



Copyright McCague Borlack LLP - Legal Notice | | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe. |