An important landmark legal decision was reached in the case of Pastore v. Aviva Canada Inc. recognizing chronic pain as a condition worthy of catastrophic designation.
In November 2002, Mrs. Pastore was struck by a car and suffered a fractured left ankle and had to undergo several ankle surgeries, and while she was recovering, she over-compensated on her right side. This resulted in chronic pain in both her right knee and ankle, which affected every aspect of her life.
Mrs. Pastore’s was 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 and family, or even take care of her own basic needs
Her lawyer Joseph Campisi, knows firsthand what this meant for his client and her family. His Italian upbringing enabled him to understand the ethical implications her injury had on her family.
A medical team including a physiatrist, psychologist, psychiatrist and occupational therapist, concluded Pastore had a catastrophic impairment consisting of a “marked impairment in her activities of daily living.’’
Catastrophic impairment entitles one to benefits of up to $1 million in medical and rehabilitation treatment, while standard benefits only give $100,000. After September 2010, these benefits have been further reduced under the standard policy to $50,000.
In 2005 she applied to her insurer Aviva Canada Inc. to have her injury designated as catastrophic so she would be eligible to receive the enhanced accident benefits she needed to care for herself and her family. She was referred to a designated assessment centre which found that she did sustain a catastrophic injury. Her insurance company refused to accept this finding, and after mediation failed, the issue was taken to the Financial Service Commission of Ontario. The arbitrator reached the same conclusions as the designated assessment centre and the case went through various appeals.
Ultimately, the Ontario Court of Appeal upheld the decision of the arbitrator and with a catastrophic designation, Pastore can apply for up to $1-million in medical and rehabilitation treatment, up to $1-million in attendant care assistance, and housekeeping assistance for life.
The decision is significant because it recognizes the serious and debilitating effects of chronic pain, which by its very nature includes physical pain. In severe cases where the impact on a claimant’s life is marked or extreme, they can apply to their auto insurer for enhanced benefits. Affording chronic pain sufferers with the opportunity to receive the same benefits that are available to individuals who have sustained other injuries.
It must still be kept in mind that a catastrophic designation is just a title that affords an injured victim an opportunity to apply for enhanced benefits, and they still has the burden of proving that they are entitled to each and every enhanced benefit that they apply for
Pastore has struggled for the last decade, 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, and will now finally received the benefits she deserves.