Ontario Court of Appeal overturns lower court’s decision in catastrophic impairment case

The Ontario Court of Appeal has found in favour of a woman claiming catastrophic impairment from her insurer, Aviva Canada, overturning a lower court’s decision.

Pastore v. Aviva Canada Inc. concerns a woman who was injured after being hit by a car while walking in November 2002. Her left ankle was broken during the accident and didn’t heal properly, leading to a number of surgeries and an eventual right knee replacement when the ankle pain lead to a change in her gait.

While she was self-sufficient prior to the accident, she became “almost completely dependant on others for her most basic personal care needs,” afterward, according to the court ruling.

In May 2005, Pastore applied to Aviva Canada to have her injuries classified as “catastrophic impairment.”

She was assessed by a team of medical professionals at a designated assessment centre (DAC), which found she had catastrophic impairment “due to mental or behavioural disorder.” The assessment was based on a section of the Statutory Accident Benefits Schedule (SABS), which uses American Medical Association’s Guides to the Evaluation of Permanent Impairment as its reference.

The centre claimed Pastore had class 4 or “marked impairment” in terms of her daily living and gave her an overall assessment of class 3 (“moderate impairment”), when considering the assessment’s other three categories: social functioning; concentration, persistence and pace; and deterioration or decompensation in work or work-like settings.

Aviva, however, didn’t accept the DAC assessment, leading to mediation and eventually, arbitration.

A major issue was whether “marked impairment” in one category could lead to a catastrophic impairment designation, or whether all four categories need that same classification for the designation to be made.

The arbitrator and eventually the delegate for the arbitrator’s director upheld the DAC’s assessments, leading Aviva to appeal to the Divisional Court for judicial review.

That court disagreed with previous decisions, saying that the Guides portion of SABS does require all four categories to be considered for a catastrophic impairment injury.

The Court of Appeal, however, recently overturned that decision, agreeing with the arbitrator’s director that the Guides’ language did not require all four categories to be considered as marked impairments for a catastrophic impairment designation.

The court also ruled that the director’s decision-marking process in that matter had been logical and reasonable.

“The director determines whether the arbitrator’s decisions of law, including statutory interpretation, are correct. However, his decision need only be reasonable,” the ruling says.