Archive for the ‘Catastrophic Cases’ Category

Developments in the field of Brain Injury Awareness

Monday, January 14th, 2013

When a brain injury occurs, it is crucial to go to a hospital or diagnostic imaging clinic to have a CT Scan or MRI test completed right away to assess what has happened.

A recent study found that , however, that CT scans can miss minor bleeds on the brain. Individuals with mild traumatic brain injuries may have normal CT Scans. It may take more sophisticated scans to see abnormalities. MRIs are of course, more expensive.

The study tracked patients with mild TBI for 3 months. Researchers found that over a quarter of patients with normal CT Scans on the day of injury had positive findings on their MRIs when tested a week later. Further testing showed that full recovery had not taken place after 3 months.

An MRI study is a more comprehensive study and is better able to show a comprehensive picture of damage.

This is why it is so important for patients to tell their doctors exactly how they are feeling and if they are experiencing any problems after a head injury.

The study showed that MRIs are able to show focal lesions, which are areas of microscopic bleeding in the brain.Researchers can use the presence of focal lesions to predict which patients are more likely to have ongoing neurological problems.

MRIs are better indicators of the course of injury and recovery.

A brain injury can cause long term damage to the brain. A traumatic brain injury can lead to inflammation and slow regeneration of brain cells. A study from the University of South Florida, found that even at the most chronic stage of injury, therapeutic intervention can help with the regeneration of brain cells. The study examined brain injuries to different areas of the brain and found that TBIs caused a second wave of cell death that impairs cell proliferation and impedes that brain’s ability to regenerate cells.

The study’s researchers found that microglia cells at the injury site and distant sites were activated around 8 weeks after injury. The researchers feel that therapeutic intervention may help prevent some long term damage to the brain.

According to the Centre for Disease Control and Prevention (CDC), 1.7 people sustain a traumatic brain injury per year and of that number, 75% are concussions or some other form of mild TBI.

Aaron Waxman & Associates is a Toronto Personal Injury Firm that advocates for the rights of its clients. Contact us today for a free consultation.

Brain Injury Awareness: New Developments in Research & Technology

Monday, December 17th, 2012

A portable liquid cooling helmet could be used to help treat concussions. This helmet was designed by a former NASA engineer, Bill Elkins. The helmet is a portable emergency cooling system that can help triage brain injuries like concussions. The helmet cools the brain, inducing a type of  controlled hypothermia that protects the nerve cells. This forces the nerves to “hibernate” and that encourage recovery.

A Canadian health IT start up company is launching a web based and tablet based tool called BrainFX360, which will help with assessing brain disorders. The company , BrainFX was founded by two Canadian occupational therapists who hope to have their product break into the US market place. Typically, a clinical neurological assessment can take anywhere from 15-20 hours. The idea is that an assessment tool should be available that can capture how a brain injury affects a person’s every day life and the tool should be sensitive enough to be able to detect minor impairments. The BrainFX360 tool consists of a 2 part assessment, to establish a baseline study.

The first part of the assessment is completed by the individual and is with regard to mood, history, behaviour, sleep etc and takes about 20 minutes. The second part of the assessment is administered by a health professional and the health professional has to be certified by BrainFX in order to administer the test. The tablet based assessment has the patient do different activities that measure cognitive skills.

Did you know that zebrafish are able to re-grow brain cells? Scientists have identified the mechanism that allows zebrafish  to re-grow brain cells after injury.  Scientists have long been aware that this species of fish can regenerate brain cells after injury, unlike humans, by activating stem cells. The question of how, long remained a mystery until recently.

Researchers have discovered that regeneration in the zebrafish brain is actually linked to inflammation; a side effect of brain injury that is thought to be harmful to the brain. It appears that inflammation is what ‘kick starts’ the regeneration process in the zebrafish.

In mammals, including humans, chronic brain inflammation (persistent inflammation, or inflammation that lingers) is linked to scarring and diseases such as Alzheimer’s. Acute inflammation (lasts for a short period) is usually related to a blow to the head or sports injury.

When brain trauma occur, cells tend to build up at the site of the injury, which is how scar tissue forms in mammals. In zebrafish, when trauma occurs, it triggers regeneration.

Scientists were able to identify a molecule called leukotriene C4 (LTC4) – which, when injected into the uninjured zebrafish brain, mimicked the regenerative response. The study authors and scientists noted the implications this could have for humans.

In other research news, stem cells could help in treating traumatic brain injury. Scientists from the Medical College of Wisconsin (MCW) and the Clement Zablocki VA Medical Center received a one-year, $20,000 grant from the Clinical and Translational Science Institute of Southeast Wisconsin (CTSI). Their study is with respect to how stem cells derived from bone marrow assist in the healing of traumatic brain injury (TBI).

Currently, there are no effective therapies for TBI. According to the researchers,  there is increasing evidence that bone marrow-derived mesenchymal stem cells (BMSC) have potential to migrate toward the site of trauma and stimulate recovery of the damaged brain tissue after TBI.

Aaron Waxman & Associates is a Toronto Personal Injury Law Firm. We handle personal injury cases, including claims for traumatic brain injuries and catastrophic claims.

Pastore v. Aviva Canada Inc. – Definition of Catastrophic Impairment broadens, victory for the plaintiff’s bar

Thursday, October 11th, 2012

The Ontario Court of Appeal finally released its decision in Pastore v. Aviva Canada Inc. It’s been referred to as a “landmark decision on chronic pain”.

The OCA ruled that chronic pain is a psychological condition that can produce a catastrophic impairment, thereby entitling accident victims to enhanced medical benefits.

The unanimous decision of the Court means will allow claimants with severe psychological impairments to access much-needed benefits beyond standard accident benefits.

The Court of Appeal overturned the lower court’s decision that would have denied the plaintiff, Anna Pastore access to extended benefits.

Pastore v. Aviva concerns a woman who was struck as a pedestrian in November 2002 and injured and broke her left ankle, which never healed properly, leading to numerous surgeries and an eventual knee replacement.

Prior to the accident, she was the primary caregiver to her husband of over 35 years, who was receiving chemo-dialysis.  The decision states that she is almost completely dependent on others for her most basis personal care needs.

Pastore applied for catastrophic determination in May 2005.

Pastore was assessed by a team of medical assessors to determine if she was catastrophically impaired. It was found that she had catastrophic impairment due to mental or behavioural disorder. She had class 4 or ‘marked impairment’ in terms of her activities of daily living and assigned her a class 3 (moderate impairment) with respect to social functioning, concentration, persistence and pace and deterioration or decompensation in work or work-like settings.

Aviva did not accept the findings of the assessment centre and this led to mediation and arbitration.

One major issue was whether marked impairment in one category was enough to lead to a catastrophic designation.

The arbitrator and the Director’s Delegate upheld the decision of the assessment centre and found that Pastore was catastrophically impaired. Aviva appealed this decision and the Divisional Court sided with Aviva, stating that the Guides portion of the Statutory Accident Benefits Schedule (SABS)  requires all four categories to be considered as marked impairments in order for a person to be deemed as catastrophically impaired.

The Ontario Court of Appeal disagreed and overturned the Divisional Court’s decision, siding with the original decision, stating that the American Medical Association’s Guides to the Evaluation of Permanent Impairment language did not specifically require all four categories to be considered marked impairments for a catastrophic impairment designation.

The role of pain was addressed within the context of the marked impairment test. The OCA concluded that a cumulative approach should be taken where it is not possible to factor out the impact of discrete physical impairment and associated pain limitations.

What the court is saying, is that pain can be considered within the marked test in cases where the pain is not cleared related to physical causes, but may be related to a mental disorder.

Aaron Waxman & Associates is a Toronto Personal Injury Law Firm that handles personal injury claims, including catastrophic cases.

Ontario Coroner’s Report on Pedestrian Deaths: No Jaywalking and Reduce Speed Limits

Thursday, September 20th, 2012

Ontario’s Deputy Chief Coroner, Dr. Bert Lauwers issued his report on pedestrian deaths on Wednesday, September 19, 2012, in collaboration with the Office of the Coroner.

The Report reminds us that we are all pedestrians.

According to the Coroner’s office, approximately 113 Ontarians die annually from pedestrian accidents.

The Coroner’s office suggested the following:

  1. Pedestrian deaths are more likely to occur during the months when daylight is shorter. (e.g. November to March).
  2. Pedestrian deaths are more likely to occur when a pedestrian and/or driver is using a mobile entertainment/communication device. (e.g. cell phone, ipod, etc.).
  3. Pedestrian deaths are more likely to occur when one or more persons involved in the collision are under the influence of alcohol and/or drugs.
  4. The vast majority of pedestrian deaths are preventable.

According to the Review on Pedestrian Deaths, in Canada, characteristics of pedestrian traffic are as follows:

  • 75% of pedestrian traffic fatalities occurred on urban roads;
  • 60% of pedestrians killed in traffic crashes were trying to cross the road;
  • 35% of fatally injured pedestrians were aged 65 or older even though they represent only 13% of the population;
  • 63% of pedestrians killed at intersections were 65 or older;
  • 6% of fatally injured pedestrians were under the age of 16 and of these, 20% ran out into the street;
  • 33% of fatally injured pedestrians acted in a manner which caused or contributed to the crash;
  • 33% of fatally injured pedestrians were struck by a driver who had committed a traffic infraction prior to the crash;
  • 60% of pedestrians were killed at night or during dim light conditions when they were not seen by drivers; and
  • 40% of fatally injured pedestrians had been drinking

The Coroner’s Office made 26 recommendations in the Report. Highlights of the recommendations include:

  • lowering speed limits in residential areas to 40 km/h
  • installing side guards on heavy trucks to help prevent people from falling beneath and getting crushed by the rear wheels
  • implementing a complete streets approach to guide the development of new communities and redevelopment of existing ones
  • creating an educational program for senior citizens and other adult pedestrians
  • creating an educational program for drivers

The Coroner found that 67% of pedestrian fatalities occurred on streets with a posted speed limit of above 50km/h.

Other significant factors for pedestrian deaths included jaywalking, inattentive motorists and distracted walkers.

It was found that nearly one third of pedestrians died while jaywalking.

The Report notes that in 14% of the deaths, driver inattention was noted.

Pedestrian distractions including dogs, smartphones and cellphones may have contributed to 20% of the fatalities.

Canada has a Road Safety Strategy according to the Report. The vision of the Strategy is to make Canada’s roads the safest in the world. Currently, Canada is ranked 10th in terms of fatalities per billion vehicle kilometers travelled compared to other member countries of the Organization for Economic Cooperation and Development.

The key elements of the Strategy are:

  • a downward directional trend in fatality and serious injury rates over the 2011 to 2015 period;
  • jurisdictions will adopt a holistic (Safer System) approach addressing the vehicle, the road infrastructure, and road users based on the primary risk groups;
  • an evidence-based Best Practice Framework will be adopted in choosing interventions;
  • a fluid and flexible approach will allow jurisdictions to adopt best practices appropriate to their situation; and
  • jurisdictions will own their road safety plans.

To achieve this, the Strategy seeks to target:

  • young drivers (16 to 24);
  • medically-at-risk drivers (e.g. those with heart disease or cognitive disorders such as Alzheimer’s Disease);
  • vulnerable road users (i.e. pedestrians, motorcyclists, bicyclists);
  • motor carriers (e.g. managers of carrier operations, truck and bus drivers);
  • high risk drivers (e.g. those who don’t wear seat belts or who speed, drive impaired, or drive without a valid license) and the general population.

Dr. Andrew McCallum, Chief Coroner for Ontario stated “A road safety paradigm shift will be necessary”, acknowledging that the rising cost of fuel will result in an increase in cyclists and pedestrians.


Aaron Waxman and Associates is a Toronto personal injury law firm. We handle various types of personal injury claims including motor vehicle accident, pedestrian, long term disability and critical illness claims.

Drive Safe This Long Weekend

Tuesday, May 15th, 2012

As the Victoria Day Weekend approaches and people get ready to go to their cottages and go away for the long weekend, the OPP remind everyone to exercise caution with driving and avoid driving while under the influence of alcohol and drugs.

This week, the OPP launched their Safety Week, a province wide blitz for Ontario that began on Monday May 14, 2012.

Police want the public to be aware that they are on the lookout for bad driving habits and safety concerns. They are looking for the main contributors to serious and fatal accidents: aggressive, impaired & distracted driving.  Officers are also checking to see that everyone is wearing their seat belts.

If you have been involved in a car accident, contact Aaron Waxman and Associates for a free no obligation consultation. We can help you during your difficult time.

Recent Developments in Brain Injury Research

Sunday, March 4th, 2012

Brain Trauma might be more common than expected according to the Mayo Clinic. In a recent study published in the journal Epidemiology, researchers from the Mayo Clinic applied a new system for classifying injuries to the head and found that the incidence of traumatic brain injury is likely greater than has been estimated by the CDC.

What people often fail to remember and recognize is that even mild traumatic brain injuries can affect a person’s sensory motor functions, thinking, awareness and communication.  A lot of people have gone undiagnosed.

Researchers came up with the  Mayo Traumatic Brain Injury Classification System, a new brain injury method that classifies head injuries with new categories.  The categories label patients with “definite,” “probable” and “possible” TBIs, providing a way to incorporate symptoms such as a brief period of unconsciousness or even an injured patient’s complaint of dizziness or nausea.

Researchers are finding a strong link between TBI and post traumatic stress disorder. Researchers found a causal link between mild traumatic brain injuries and PTSD. There is an increased susceptibility to developing PTSD. People who have sustained a mild TBI are also more likely to develop an anxiety disorder.

An experimental drug might limit stroke damage. There is currently only one effective treatment for stroke, which is a Tissue Plasminogen Activator TPA that can dissolve blood clots that cause a stroke. the catch is that is has to be given very soon after symptoms appear and doctors first have to make sure that the stroke itself was not caused by a ruptured blood vessel. If that was the case, TPA can make the situation a lot worse.

At the Toronto Western Hospital Research Institute in Canada, it was discovered that a drug known as a PSD-95 inhibitor could be used as a treatment for strokes. It works by blocking a key protein that leads to brain-cell death. The study has been published in the journal, Nature.

Daily doses of a drug, Amantadine, used to treat Parkinson’s disease may help treat brain injuries according to a new study. The drug was given to patients who had suffered severe brain injuries. The doctors found that the drug helped with recovery and noticed a difference between patients who were given the drug and patients who were part of the clinical study that did not receive the drug.

Amantadine was also used as a flu drug in the past. When given to patients with serious traumatic brain injuries, it was noted that far fewer patients who were given this drug remained in a vegetative state. Visible steps towards recovery was seen.

Another medication being tested as a treatment for brain injuries is Clazosentan. A TBI causes a decrease of blood flow to the cerebrum of the brain. There is a receptor in the brain called endothelin receptor A (ETrA) contributes to the restriction of blood flow as early as four hours after a brain injury. Clazosentan is thought to specifically block these receptors.

How can doctors truly diagnose a brain injury? ABC news posted an article about detecting unseen damage in the brain with traumatic brain injuries. Doctors often miss brain injury damage that doesn’t show up on scans. Scientists are in the process of testing a tool that lights up the damage caused to the brain’s wiring by blows to the heads. Scientists want to make these “invisible wounds” visible.

For doctors, if they can’t see or quantify the damage, it’s hard to treat it. Especially with more serious head injuries, standard scans, like CT scans cannot see beyond bleeding or swelling to tell if the brain’s connections are broken in a way it that it can’t repair on its own.

Scientists are looking into technology called fibre -tracking, referring to nerve fibre, which act like a telephone network. These fibres make up the white matter of the brain. The new proposed MRI scan examines these connections and detects if any connects have been broken.

Aaron Waxman and Associates is a Toronto Personal Injury Law Firm that handles brain injury litigation claims and other personal injury matters.

Social Media and Personal Injury Cases

Sunday, March 4th, 2012

Insurance companies and their adjusters are increasingly relying on social media as an investigative tool.

Insurance companies are using social media to verify and challenge the accuracy of personal injury claims.

So, what types of accounts are being looked at? Facebook, LinkedIn, Twitter, My Space, hi5.

But, insurance companies haven’t gone public with their policies about social media. We don’t know how they are collecting information, monitoring social media and for what purpose.

Anyone who has a claim for accident benefits or disability benefits should be aware of these tactics and consider what they post on social media sites. You have the ability to choose your privacy settings on sites like Facebook and Twitter. Be wary of what your friends post, especially if they have open profiles and check your settings regarding visibility for these posts.

Clients should also be aware of anonymous “friending” to gain access to Facebook or directing a third party to “friend” someone for the purposes of investigation. These are unethical practices.

According to a recent article published by Canadian Underwriter, “As much as social media sites can help to inform, it is also important to view the information as a snapshot. You have to incorporate it into a total assessment of the claim. You can’t just hang your hat on social media.”

What do the courts have to say about the use of social media in litigation?

Judges in Canada are sorting through the consequences of the uses of social media. The following Ontario cases are cases where judges ruled that content posted on social media sites (Facebook) is admissible as evidence in limited form:

Kourtesis v. Joris (2007)

Leduc v. Roman (2009)

Wice v. Dominion of Canada General Insurance (2009)

These cases show that defence lawyers have successfully argued for the production and preservation of this ‘private’ information in some capacity.

In 2011, an Ontario Superior Court Justice ordered production of a plaintiff’s social media photos in the case, Morabito v. DiLorenzo. This was a motor vehicle accident case. Justice James A. Ramsay ruled that only photographs were relevant evidence, but not status updates or wall posts. The plaintiff was also ordered to re-attend examination for discovery to answer questions about the photos posted on Facebook and other social networking sites.

In these cases, it is about what content is relevant, and what the defense can prove is relevant to the case. The ruling judges must find the content is relevant to the issues in the case.

Another issue that arises is whether or not the plaintiff or claimant has to preserve his or her Facebook site (not allowed to delete any posts or tweets).

What happens if the content of a plaintiff’s social media profile is not relevant to the case?

In Schuster v. Royal and Sun Alliance (2009), the defence lawyers did not provide enough evidence to show the plaintiff’s Facebook profile contained relevant information. The plaintiff did not have to produce or preserve her Facebook page.

The area of social media law is still emerging. In terms of case law, decisions can go either way, so there is no clear direction as of yet.

When it comes to decisions from the Financial Services Commission, there doesn’t seem to be a clear direction either. A January 2011 decision, Prete and State Farm, found that the relevance of images (video posts and pictures) posted on a Facebook did not have enough relevance when weighed against other factors such as sensitivity and practicality. The arbitrator declined State Farm’s request for the productions.

In Rakosi and State Farm, the arbitrator ordered that the applicant produce photos of herself from Facebook and hi5 sites. The request from State Farm met the test for a “semblance of relevance”.

Plaintiff’s lawyers have to advise clients of the potential for social media sites to be used as surveillance. A good idea is to set this out in your initial letter to the client, and to remind them of this when preparing them for discoveries.

Kusnierz Decision Released

Saturday, December 31st, 2011

The long-awaited decision regarding Kusnierz v. Economical Insurance was released on December 23, 2011.  The Ontario Court of Appeal overturned the 2010 trial decision and the Court of Appeal Judges, in the Disposition, state:

“I would allow the appeal, set aside the judgment of the trial judge, declare that the appellant meets the definition of “catastrophic impairment” under cl. 2(1.1) (f) of the SABS and, accordingly, is entitled to enhanced medical and rehabilitation benefits thereunder, and direct the respondent to pay such benefits to the appellant.”

What the Ontario Court of Appeal did in this decision was confirm that that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a catastrophic impairment. When the trial decision came out in 2010, plaintiffs lawyers were very worried about what it would mean if the combination of psychological impairments and physical impairments were not allowed.

Pre- September 1, 2010 insurance changes, for those accident victims whose accidents took place before September 1, 2010, and who were not declared catastrophic, had access to $100,000 in medical and rehabilitation benefits. Post- 2010 changes, the amount changed to $50,000 for accidents occurring after September 1, 2010.

If an accident victim is declared to be catastrophic, the med/rehab benefit amount changes to $1 Million. You can understand why a person with serious injuries, like Mr. Kusnierz who suffered an amputation to his legs, with complications to his stump and with his prothesis and serious psychological issues, 10 years after his accident, would need more than $100,000 in medical and rehabilitation benefits.

By allowing Mr. Kusnierz’s appeal, it was the first time an appellate court weighed in on the issue of combining psychological and physical impairment.

In Desbiens v. Mordini, a 2004 decision which was the decision that the courts previously followed with respect to the definition for catastrophic impairment combining psychological and physical impairment, the trial judge, Justice Harvey Spiegel found that an accident victim’s psychological impairments should be combined with physical impairments when considering whether he or she suffered a “55 per cent whole person impairment” (one of the definitions of catastrophic impairment). What this case did for plaintiff was confirm that catastrophic impairment status could be sought by a wider range of accident victims than previously thought.

Desbiens had been followed by the court and the Financial Services Commission of Ontario until the judge at Kusnierz’s October 2010 trial disagreed. The Court of Appeal stated that it preferred Spiegel’s conclusion and reasons in Desbiens than those of the trial judge in Kusnierz.

For a more detailed look, posted a great synopsis of the decision and what it means for plaintiffs and plaintiffs’ lawyers.

What remains to be seen is what will happen with the definition of catastrophic impairment. What changes will the government implement and will this decision have any impact?

One of the issues discussed in FSCO’s Expert Panel Report was the very issue of combining factors to achieve CAT impairment.

The fight isn’t over yet.

Mr. C v. Coachman Insurance Company

Tuesday, November 8th, 2011

At Aaron Waxman and Associates, we handle serious personal injury claims. We handle and have handled many catastrophic car accident claims. We have dedicated past blog posts to the subject of proposed changes to the definition of catastrophic impairment and to the Kusnierz case, which is being heard on November 16, 2011.

Recently, a case was heard at FSCO called Mr. C. v. Coachman Insurance Company where the insured party, Mr. C. sought catastrophic impairment determination. Coachman Insurance Company denied the determination.

Mr. C. , prior to his accident, was employed as a labourer, with a good track record and overall a good life. After the accident, he was diagnosed with Major Depressive Disorder (severe), Pain Disorder Associated with Both Psychological Factors and General Medical Condition (herniated discs) and Specific Phobia (driving, passenger anxiety). His condition continued to deteriorate and he became suicidal and expressed suicidal and even homicidal wishes towards his family. He was hospitalized for his psychological problems, and shortly thereafter, overdosed on his pain medication.

Assessments had been obtained on the behalf of Mr. C. supporting a CAT designation on the basis of marked impairment. Coachman Insurance Co. did not call any witnesses to defend its case and Arbitrator J. Miller found that in the insurer assessments, the assessors failed to comment on/consider important assessments and appeared to be biased towards the insurer. The written submissions on behalf of the insurer did not present an objective picture of evidence. Further, during the proceedings, the insurer’s counsel was aggressive with its cross-examination of Mr. C.

Mr. C. underwent a very aggressive and at times inappropriate cross-examination. Inappropriate in that, counsel for Coachman screamed some of his questions at Mr. C. with the clear intention, in my view of intimidating Mr. C. As well, counsel glared intensely while firing off questions at a very rapid pace. In addition, counsel unnecessarily and redundantly repeated questions that already had been answered. Objections to counsel’s behaviour were consistently ignored.”

Arbitrator Miller found that Coachman Insurance Co. did not have a defense of any substance in this case and he accepted the evidence of Mr. C. and found that he suffered a catastrophic impairment pursuant to 2 (1.2) (g) of the Statutory Accident Benefits Schedule (SABS). Clause 2(1.2)(g)  provides that a catastrophic impairment includes an impairment that, in accordance with the American Medical Association, Guides to the Evaluation of Permanent Impairment, Fourth Edition, results in a class 4 (marked impairment) or class 5 (extreme impairment) due to mental or behavioural disorder.

Coachman Insurance Company and its counsel were not allowed to use bullying or intimidation as means of defending the claim. Bullying cannot be tolerated, nor should not be tolerated at FSCO.

The decision was released on October 21, 2011.

Kusnierz v. Economical: What does it Mean for CAT Cases?

Tuesday, October 25th, 2011

Since FSCO released the “Recommendations for Changes to the Definition of Catastrophic Impairment”, plaintiffs’ lawyers across Ontario have been very concerned about what the proposed recommendations means for catastrophically impaired accident victims. For an overview of the proposed recommendations, please visit our blog entry, “Catastrophic Injuries: what you need to know about the proposed changes“.

Something else that has been pressing on the minds of the plaintiffs’ lawyers is the case of Kusnierz v. Economical. This case is currently under appeal to the Ontario Court of Appeal, to be heard on November 16, 2011.

Robert Kusnierz was a passenger in a motor vehicle rollover accident that occurred on December 24, 2001 and suffered serious injuries. His most serious injury was an amputation to his left leg, below the knee. He went on to develop problems with finding a prosthetic leg and developed cysts on his stump.

His trial proceeded in Newmarket before the Honourable Mr. Justice Lauwers in November 2009 and January 2010. It was argued that Justice Lauwers ought to follow the 2004 decision of Desbiens v. Mordini in deciding the case. Mr. Kusnierz was seeking a declaration that he had sustained a catastrophic impairment and was therefore entitled to a high level of benefits under that category, under the Statutory Accident Benefits Schedule (SABS).

Mr. Kusnierz had exhausted his $100,000 medical and rehabilitation limits by November 11, 2005. If he is to be declared catastrophically impaired, the Economical Mutual Insurance Company must pay $1,000,000 in medical and rehabilitation benefits.

In Desbiens, the Honourable Mr. Justice H. Spiegel determined that the plaintiff was catastrophically impaired as a result of his 1999 motor vehicle accident pursuant to the American Medical Association’s (AMA) Guidelines (4th Edition) for whole body impairment. The AMA Guidelines are incorporated into the Insurance Act in Section 267.5(4). Justice Spiegel concluded that the proper interpretation of the AMA Guidelines with respect to whole body impairment is to assign a percentage rating to the plaintiff’s psychological impairments and these are to be combined with the physical impairments for the purposes of determining whether impairments meet the definition of catastrophic.

Desbiens set the standard for FSCO and Superior Court decisions with respect to determining what was the correct way to decide on the issue of catastrophic determination.

In Kusnierz, Justice Lauwers concluded that the AMA Guidelines 4th edition does not allow for the combining of mental and behavioural impairments with physical impairments. Justice Lauwers held that there is a distinction to be had between mental and behavioural disorders in Chapter 14 of the Guide and physical impairments which are referred to in other chapters of the Guide.

Justice Lauwers went on to assign a rating for Mr Kusnierz’ physical impairments (amputation, skin issues, medication needs, cervical spine, lumbar spine, ulnar nerve), being 50% and not catastrophically impaired. A whole person impairment rating of 55% or more is needed to be catastrophically impaired.

The Court of Appeal’s decision will answer whether or not a percentage rating can be applied to psychological impairments for the purposes of a whole person impairment rating.

If Justice Lauwers’ ruling is upheld, and impairment ratings can no longer be combined, car accident victims who have suffered serious physical injuries and psychological injuries that do not meet the whole person impairment 55% threshold for catastrophic in either category, but would meet the catastrophic threshold if ratings were combined, are going to lose out on SABS benefits.

This will be incredibly challenging for plaintiff’s lawyers and accident victims, especially for those who have not chosen to purchase optional benefits to increase their medical and rehabilitation coverages from $50,000 to $100,000.

Optional benefits are available through insurance companies for added protection. It is better to have $100,000 coverage for non-catastrophic claims than $50,000 as people underestimate how fast $50,000 can be used up.

It can take 2 years or more until an accident victim is declared catastrophic.

For now, plaintiff lawyers are anxiously awaiting the results of the November court appearance in Kusnierz, and waiting to hear what recommendations FSCO is going to consider from the expert panel with respect to changes to the definition of catastrophic. Bear in mind the recommendations included reviewing the very issue being considered in Kusnierz, and the panel stated that further study is needed with respect to combining psychological and physical ratings and in the interim, this combination should not be allowed.