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In a “precedent-setting decision,” the Ontario Court of Appeal has held chronic pain is a psychological condition that results in a catastrophic impairment and granted a Toronto woman enhanced medical benefits, says personal injury lawyer Joseph Campisi.
“It was a unanimous decision,” says Campisi, who represents Anna Pastore. “I think this is an important decision that allows claimants with severe psychological impairments to receive much-needed benefits beyond the inadequate standard policy.”
The long-awaited judgment in Pastore v. Aviva Canada Inc. was delivered Thursday morning. Read Pastore v. Aviva Canada Inc.
The ruling means Pastore is entitled to enhanced accident benefits, including up to $1-million in medical and rehabilitative treatment and up to $1-million in attendant care benefits from her insurer, Aviva Canada Inc.
“I am very happy for Mrs. Pastore who has patiently waited several years during the litigation of this dispute with her auto insurer,” says Campisi, a partner with Carranza LLP. “Mrs. Pastore can now focus on her recovery as these much-needed enhanced benefits will go a long way in restoring her independence and dignity.”
In November 2002, Pastore was crossing a Montreal street when an oncoming vehicle struck her. She sustained a fracture to her ankle and she also developed knee problems and a number of psychological impairments including pain disorder associated with both psychological factors and a general medical condition, commonly referred to as chronic pain.
Pastore was entitled to limited accident benefits, but was later deemed catastrophically impaired based on her psychological condition, a designation which permits her to receive enhanced benefits, says Campisi.
“She had chronic pain which is a serious and debilitating condition and the Court of Appeal found that her mental or behavioural disorder in her activities of daily living was serious enough for a designation of catastrophic impairment. She can now apply for the enhanced benefits available to her.”
After successfully arguing Pastore’s case before an arbitrator with the Financial Services Commission of Ontario and again before a Director’s Delegate with the commission, Pastore’s auto insurer Aviva Canada applied for judicial review of the arbitral decision through Divisional Court, which sided with Aviva.
Aviva, and the Insurance Bureau of Canada, which intervened in the appeal, have vigorously challenged the findings made at the commission.
“The debate was focused on how many marked impairments are required in the four functional domains: activities of daily living; social functioning; concentration, persistence and pace; and work adaptation,” Campisi says.
The case stands out because no one expected Pastore to be catastrophically impaired, he adds, noting that chronic pain is “not something you can see on an X-ray.
“In my opinion that’s why the insurance company has fought the case so hard, due to the unsubstantiated fear that the floodgates will open and chronic pain sufferers will have access to enhanced accident benefits, a level of benefits previously reserved for only the very severely injured,” he says. “The problem is that mental and behavioural impairments have generally not been regarded as severe injuries worthy of catastrophic designation.”
Pastore’s claim for compensation falls under Bill 59, where medical and rehabilitative treatment is capped at $100,000. That amount jumps to $1 million for an individual who is catastrophically impaired. Also, catastrophic victims can claim housekeeping and attendant care assistance beyond the two-year time period that the standard policy provides for.
Campisi says Pastore has struggled for the last 10 years, unable to walk up and down the stairs in her home and forced to use a commode, or a portable toilet, in her family room instead of the washroom upstairs. She has been in desperate need of housekeeping and attendant care benefits beyond the standard two years.
“She has had to wait so long and has had to go through a lot,” Campisi says. “Her husband is ill and because she hasn’t received the enhanced benefits they’ve been struggling.”