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, canadianlawyermag.com 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.
Tags: car accident claims, catastrophic cases, disability claims ontario, disability claims toronto, personal injury lawyer toronto, toronto personal injury lawyer