Pastore – Why Did it Take Five Hearings to Confirm “A” Means “One”?
Oatley Vigmond had the pleasure of representing the Ontario Trial Lawyers Association in this appeal, involving Anna Pastore and her auto insurer, Aviva Canada inc.1
Anna Pastore was 60 years old when she was in a motor vehicle collision in 2002. She suffered a fractured ankle. She required multiple surgeries. The screws in her ankle started to break through the skin, necessitating further surgery. She eventually required a knee replacement.
In 2005, Aviva retained a team of doctors who concluded that Mrs. Pastore suffered from an adjustment disorder, depression and a pain disorder. The doctors concluded that Mrs. Pastore suffered a marked impairment with respect to participating in her activities of daily living. Aviva’s own doctors concluded that she has suffered a catastrophic impairment as that term is defined in the Statutory Accident Benefits Schedule (SABS).
This was a significant designation for Mrs. Pastore as it would provide her with access to a life-time of much needed medical and rehabilitation benefits.
Aviva refused to accept the conclusion of its own doctors. It argued that suffering a single marked impairment was insufficient. It denied further medical and rehabilitation benefits.
This significant decision should not have taken five hearings over several years to determine. the language of the SABS is clear. It was hard to imagine, on any reasonable interpretation of the word “a”, that it could include more than one marked impairment.
However, there was much more at stake than a dry legal issue concerned with the interpretation of the word “a”. The entire accident benefits system was designed so that those people who would be expected to have greater health care needs could access the benefits they need, and at least have some hope that their lives would improve.
At the heart of this issue are real people with real behavioral problems and impairments. It is one thing to simply say that a person suffers from a “marked impairment”. It is quite another when one considers what a “marked impairment” is and what these people suffer through on a daily basis. The terms are thrown around in legal and medical circles, with little to no consideration of what it is actually like to live with these impairments.
What exactly does “marked impairment” mean? According to the AMA’s Guides to the Evaluation of Permanent Impairment, 4th ed., 1993, a person with a marked impairment in daily activities, is a person whose behavioral impairments significantly impede most useful functioning with cleaning, shopping, cooking, riding a bus, paying bills, maintaining a residence, grooming, using a telephone or working.
That is just one example of the four. The insurance industry as a whole ignored the clear language of the section and insisted that not only must a person face a significant impediment with routine activities noted above, they must also face an impediment in social functioning, or in concentration, persistence and pace or decompensation in a work or work like setting.
Not only, according to the insurance industry, must a person live with a significant impediment in using a phone and shopping (among other things), but they must face significant impediments in other facets of their life in order to qualify as having suffered a catastrophic impairment. To suggest that a person who faced a significant impediment performing activities that most do with almost no thought is not catastrophically impaired seems odd indeed in the context of a system set up to help people recover from injuries.
It seems even odder still when the law clearly states that “a” marked impairment is what is required. This was one of those cases where the clear language of the section also conformed with the purpose and intent of the catastrophic impairment designation, which has always been inclusive and designed to help those in need.
The Court of Appeal got this one right – not just because the wording of the statute is clear, but because the entire system is based on getting those that would be most in need, the help they need. This decision will help our clients do that. It will provide people with much needed help and hope.
1. Jim Vigmond and Brian Cameron represented the Ontario Trial Lawyers Association, Intervenor before the Divisional Court and the Ontario Court of Appeal earler this year.
