On December 23, 2011 the Ontario Court of Appeal released its decision in the matter of Kusnierz v. Economical Insurance. (“Kusnierz”). The Plaintiff in this case, Mr. Kusnierz, was seriously injured in a motor vehicle accident. Unfortunately for Mr. Kusnierz, as a result of the accident, he had a portion of his leg amputated, he suffered numerous chronic soft tissue injuries and psychological upset. He applied for catastrophic designation under the Statutory Accident Benefits Schedule (SABS). The assessment for catastrophic determination supplied by Mr. Kusnierz found that he was catastrophically impaired and it did so on the premise that the combination of his physical and psychological impairments were of sufficient severity to amount to a whole person impairment greater than 55%. The insurer denied this claim and litigation ensued.
The crux of the dispute between Mr. Kusnierz and his insurer was whether or not it is permissible to combine physical and psychological impairment ratings in order to achieve the 55% whole person impairment threshold to be entitled to catastrophic benefits. Ultimately this was a case that came down to statutory interpretation of the catastrophic impairment provisions under the SABS.
The judge hearing the matter at trial concluded that it was not permissible to combine psychological and physical impairments.
The trial decision was a major blow to the Plaintiff’s bar and to accident victims since the practice of combining physical and psychological impairments to achieve a catastrophic determination had been commonplace since the Court’s decision in the matter of Desbiens v. Mordini 2004 CanLII 41166 (ON SC), back in 2004; this was the case even though the SABS, as written, do not expressly permit or forbid the practice of combining physiological and psychological impairments to achieve a 55% whole person impairment.
The trial judge’s conclusion was successfully challenged and reversed by the Court of Appeal in a judgement released on December 23, 2011. In reversing the decision the Court of Appeal expressed a desire to revert back to the analysis outlined by Justice Spiegel in the Desbiens decision.
Intuitively the Court of Appeal’s decision makes sense. Catastrophic benefits were put in place to assist the most seriously injured accident victims, and as such it does not seem fair to deny an individual benefits simply on the basis that the whole of their impairment does not fit neatly into either a physical or psychological category. In fact, it is likely those individuals with complex needs that involve both physical and psychological injuries that are in need of additional funding for treatment.
This is certainly an important victory for seriously injured accident victims in Ontario and one may argue it is even more important today given the reduced benefits available to non catastrophic accident victims post September 1, 2010. We certainly hope that the gains made by this decision and the comments by the Court of Appeal are carefully reviewed and taken into account by the Ministry of Finance which is in the midst of deciding whether or not changes should be made to the definition the catastrophic impairment. A FSCO committee recently submitted a report to the Ministry with recomendations for changes to the defintion. A change to the defintion that would forbid the combintation of physical and psychological impairments would eliminate benefits to seriously injured individuals like Mr. Kusnierz and would certainly be an unfortunate and unfair amendment.
Gluckstein and Associates would like to extend their congratulations to the Appellants’ counsel and to counsel who assisted the Ontario Trial Lawyers Association as interveners in this case on all their efforts with respect to this successful appeal.