Judgement Date: February 11, 2009 Personal injury Lawyer: Joseph Campisi
In November 2002, our client Mrs. Pastore was struck by a car and suffered a fractured left ankle. Mrs. Pastore had to undergo several ankle surgeries, and while she was recovering, she over-compensated on her right side. This resulted in pain in both her right knee and ankle. Eventually, she had to undergo a right knee replacement. At arbitration, it was our position that her surgeries were needed because of the injuries she sustained during the accident.
Mrs. Pastore is a hard-working Italian matriarch. She not only held a job, but also tended to her home as well as her disabled husband. Being a traditional Italian woman, she took great pride in her home and her matriarchal role in keeping the family together. Following the accident, she could not work, look after her home or care for herself. Her auto insurer agreed to pay income replacement, housekeeping and attendant care benefits. However, under Ontario law, housekeeping and attendant care benefits are only payable for two years following a motor vehicle accident unless the insured person has sustained a catastrophic injury, which includes loss of limb, loss of sight and paralysis.
In speaking with Mrs. Pastore, we understood that her chronic pain was catastrophic in a cultural sense. We knew she would do anything to provide for her family. The fact that she could no longer perform this role spoke volumes. We realized that she needed assistance from a lawyer who understood her cultural background.
After failed settlement negotiations with the insurer, we proceeded with arbitration where we sought an order that stated Mrs. Pastore had indeed suffered a catastrophic impairment as a result of her motor vehicle accident.
After a five-day arbitration that included expert cross-examination, the arbitrator ruled that Mrs. Pastore had indeed sustained a catastrophic impairment. This decision was upheld on appeal.
In this groundbreaking decision, chronic pain was recognized as a disabling disorder significant enough to qualify Mrs. P as having suffered a catastrophic impairment. As a result, the insurer was required to continue to pay housekeeping and attendant care assistance to Mrs. P beyond the first two years following her motor vehicle accident.
Case and Appeals Synopsis