The recent decision from the Court of Appeal in Pastore v. Aviva has restored much needed financial assistance to accident victims and clarified whether an injured person requires more than one marked impairment in their psychological functioning to meet the SABS definition of a Catastrophic Injury.
The Court found in favour of Ms. Pastore who had suffered a severe ankle fracture in 2002 that led to her experiencing a chronic pain disorder and psychological difficulties. The Court of Appeal reversed the Divisional Court’s decision, restoring the original decision of the Arbitrator finding that Ms. Pastore had sustained a catastrophic impairment.
Under the SABS, where a person sustained a class 4 “marked” or class 5 “severe” impairment in any one of four spheres of functioning, they will be deemed catastrophically injured according to this decision. Further, in determining whether the psychological impairment is marked or severe, the Court will look at both physical and psychological injuries.
This decision will result in somewhat easier access to the increased limits of benefits available to accident victims that are designated with a catastrophic impairment.
Section 2(1.1)(g) of the SABS defines a Catastrophic Impairment as:
an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.
Essentially, the Court interpreted the word “a” to mean that the legislators only required one area of impairment as opposed to an overall marked or severe impairment in all areas of functioning.
The Court found that the interpretations provided by FSCO were reasonable and deference should have been provided by the Divisional Court to the decision.
For further information please contact:
Jason D. Singer
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