The Ontario Division Court decision in Aviva v. Pastore is a bad turn for accident victims with psychological injuries

1. Is a Class 4 (marked impairment) in only one area of functioning sufficient for a catastrophic impairment designation?

The majority of the Ontario Division Court concluded that all four of the areas of function identified in the AMA Guides (4th edition) must be taken into account.

In a ‘concurring in part’ decision, Justice Matlow of the Ontario Division Court was of the view that nothing in the Guides requires more than a single finding.

2. Should an impairment assessment under s.2(1.1)(g) of the SABS (now s.2(f) of the current SABS) distinguish and exclude impairments that are due to physical injuries from an assessment of impairments that are due to mental or behavioural disorder?

The Arbitrator and the Director’s Delegate had included pain that was associated with, or was a symptom of, the physical injuries suffered by Ms. Pastore, rather than considering only the pain associated with a mental or behavioural disorder since in their view it was not possible to separate the two.

The Ontario Division Court concludes that the Class 4 impairment in respect of Ms. Pastore’s activities of daily living improperly considered pain associated with her physical injuries.

• The Ontario Division Court decision in Aviva v. Pastore (May 13, 2011)