Pastore concerns a woman who was injured after being hit by a car in November 2002. Her left ankle was broken and did not heal properly. She underwent a number of surgeries and eventually her right knee was replaced due to changes in how she walked. She was self-sufficient before the accident but became almost completely dependant on others afterward. This had predictably severe consequences on Ms. Pastore’s emotional and psychological well-being.
In May 2005, Ms. Pastore applied to Aviva to have her injuries classified as a “catastrophic impairment.” She was assessed by a team of medical professionals at a designated assessment centre (DAC). They found she had a catastrophic impairment due to a “mental or behavioural disorder.” The assessment was based on a section of the SABS which uses the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The DAC concluded Pastore had a class 4 or “marked impairment” in terms of her daily living and gave her an overall assessment of class 3 (“moderate impairment”) when considering the assessments in the other three categories: social functioning; concentration, persistence and pace; and deterioration or decompensation in work or work-like settings. Aviva rejected the conclusion of the DAC assessment and litigation ensued.
The main issue in the dispute was whether a “marked impairment” in one category could lead to a catastrophic impairment designation, or whether a claimant needed to be markedly impaired in all four categories for the designation to be made. The matter eventually made its way to the Court of Appeal, which agreed with Ms. Pastore’s position that the SABS language did not require marked impairments in all four areas for a catastrophic impairment designation.
The decision is important because it means that the additional benefits available for catastrophic impairments will be available to many more accident vicitims who are suffering from chronic pain and the emotional and psychological affects that often come with it.