Catastrophic Impairment - Arbitrator Not Bound by Experts' Opinions
Renée Vinett of HSH recently succeeded in an arbitration at FSCO for a determination that her client, Mr. C, sustained a catastrophic impairment under the "mental and behavioural disorder" section of the Statutory Accident Benefits Schedule. The state of the law at the time of the Arbitration was expressed by the Director's Delegate in Aviva Canada Inc. and Pastore (FSCO P09-00008, December 22, 2009)[1]. Pastore originally stood for the proposition that one marked impairment in one of the four defined areas of function was sufficient to support a finding of catastrophic impairment. That decision was overturned on Judicial Review,[2] where the Court found that a Judge or Arbitrator must consider the inter-relationship of all four areas of function in undertaking the assessment and determining whether someone had sustained a catastrophic impairment.
Arbitrator Miller considered the evidence of the claimant's expert that he had only one marked impairment, as well as that of the insurer's experts who testified that he had none. The Arbitrator found that she was not bound by the conclusions of the experts, but instead considered their opinions and conducted her own analysis of Mr. C's functioning.
The Arbitrator found that Mr. C had marked impairments in three of the areas of function and a moderate to marked impairment in the fourth. The Arbitrator was guided by the Judicial Review decision in Pastore she considered the impact of all four areas of function and concluded that Mr. C had sustained a catastrophic impairment.
Mr. C. and Coachman Insurance is currently under appeal.
Renée has successfully litigated and arbitrated all manner of tort and accident benefits on behalf of her clients. She is passionate about righting the wrongs done to her clients and is eager to challenge the law where it is unjust. For more information contact Renée Vinett at 416-361-7560.
[1] Which upheld the Arbitrator's decision in Pastore and Aviva Canada Inc. (FSCO A04-002496, February 11, 2009).
[2] Aviva Canada Inc. v. Pastore, 2011 ONSC 2164 (CanLII).
