The Ontario Court of Appeal released the Pastore v. Aviva decision today and decided that a marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired.
In the decision delivered by Justice Feldman, the Court concluded that the Director’s Delegate’s decision to this effect was a reasonable one:
In my view, the decision of the delegate, in which he concludes that the use of “a” in the definition of “catastrophic impairment” in cl. (g) refers to a single functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range
What is also very important is that the impairment does not have to be due “solely” to the mental or behavioural disorder. The marked impairment can be caused by a combination of mental and behavioural disorder as well as physical causes of pain:
In my view, the assessors and adjudicators applied the Guides in their approach to determining whether Pastore’s functional impairments were due to her diagnosed mental disorder. The Guides acknowledge how difficult it is to separate out pain from physical causes and they suggest a multi-disciplinary approach. That approach was taken, but the assessors were not able to factor out physical causes of pain and therefore took a cumulative approach.
In his decision, the delegate approved that approach. In my view, his decision to do so was a reasonable one;
The four areas or aspects of functioning delineated in the AMA Guides are:
- Activities of Daily Living
- Social Functioning
The Ontario Court of Appeal’s decision in Pastore follows the approach it set out in Kusnierz to give flexibility to assessors where needed in order to ensure that catastrophic impairment determinations take into account all relevant factors.