Review of Pain Disorder re. Evolving
Case Law
Pastore in the Context of
Chronic Pain
Pastore and AVIVA (FSCO A04-002496, Feb. 2009). Decision
supported Dr. Salmon’s CAT DAC determination:
“I agree with the principle
enunciated in both McMichael and Belair and Ms. G and
Pilot that it is important to deal with a person as a whole
and not a mere list of quantifiable impairments. In doing so, it is
necessary to take a step back to get a sense of the full picture of
a person’s impairments individually as well as how they interact
with each other – the affect of pain is part of this picture.
Therefore, a complete
assessment must consider the effect of pain and Ms. Pastore’s Pain
Disorder on her activities of daily living.
The pain not only limits her physical abilities to do the activity
but it plays a role in the feeling of loss of meaningful activities
or social relationships. This loss is noted as resulting in
frustration, resentment or anger, which further increases pain. For
Ms. Pastore, the combination
of physical limitations and the associated pain are intertwined.
They both play an integral part in having
transformed her life
from being a completely self-sufficient and independent individual
and caregiver to her husband to becoming almost completely dependent
on him and others for her most basic personal care needs.
I agree with the CAT DAC
conclusions that it is not possible to factor out the impact
of any such discrete physical impairments and associated pain
limitations, and that any impairment rating should incorporate both
on a “cumulative basis.””
FSCO Director Delegate (Blackman), Aviva v. Pastore, Appeal P09-00008 (Dec. 2009)
ψ
Aviva argued only psychological impairments should be
considered under ‘g’, & not Pain Disorder
ψ
Aviva argued should also meet ‘f’ (55%), even if Mental/behavioural
criterion otherwise met
ψ
Aviva argued against “double counting” of impairments (f/g).
Arb. Blackman decision:
ψ
“In other words, when
assessing physical impairment, the impairment ratings have
already taken into consideration issues relating to pain and
therefore, when examining the mental behavioural impairments
under Chapter 14, you cannot recount pain as a grounds for a
mental behavioural disorder [as argued by the defense]…
[However] there is no statutory requirement that the
arbitrator dissect the mental or behavioural disorder into
supposed constituent parts.”
ψ
“In short, there is no
'inconsistency' in an insured person meeting the 'g'
definition of catastrophic impairment but not the [55% whole
body impairment] definition in ‘f””
ψ
Completely supports
the original Pastore decision that chronic pain (Pain
Disorder Associated with Psychological Factors and a General
Medical Condition) is ratable in its own right under “g”
(now “f”)
Divisional Court Judicial
Review of Pastore: Aviva v. Ontario Trial Lawyers Assoc, 2011 (ONSC
2164), see above for status of Pain Disorders ratings
Two questions considered:
ψ
Is one Marked domain sufficient to
meet CAT designation?
ψ
Should an impairment assessment
under…“g” [Mental/behavioural] distinguish and exclude impairments
that are due to physical injuries from impairments that are due to
mental or behavioral disorder?
Is one Marked domain sufficient to meet CAT designation?
Two justices concurred that one Marked domain is insufficient, while
the third felt that it may be sufficient.
Should an impairment assessment under…“g” [Mental/behavioural]
distinguish and exclude impairments that are due to physical
injuries from impairments that are due to mental or behavioral
disorder?
All justices concurred that physical injuries must be distinguished
and excluded from mental/behavioral impairment ratings
Catastrophic Application/Rebuttal and Pre/Post 104 Disability
Assessment/Rebuttal Services
