In allowing Mr. Robert Kusnierz' appeal December 23, 2011, the Ontario Court of Appeal confirmed that psychological impairments should be combined with physical impairments to determine whether a car accident victim has suffered a "catastrophic impairment". Mr. Kusnierz suffered serious physical injuries in a 2001 car accident, including a below knee amputation. He also suffered from psychological problems including depression. The Court of Appeal found that the judge at Mr. Kusnierz' trial against his insurance company, Economical, erred when he concluded that Mr. Kusnierz' psychological impairments should not be combined with his physical impairments, and that Mr. Kusnierz had therefore not sustained a catastrophic impairment.
Under Ontario's motor vehicle legislation, an accident victim who meets the definition of catastrophic impairment is entitled to claim greatly increased accident benefits, and for life or until the maximum benefits have been paid out. In tort lawsuits arising from car accidents occurring between November 1, 1996 and September 30, 2003, the accident victim must prove that he or she sustained a catastrophic impairment to recover health care expenses. A determination of catastrophic impairment often makes a crucial difference to an accident victim's recovery and quality of life.
In the landmark 2004 trial in Desbiens v. Mordini, in which the writer acted for Mr. Desbiens, 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% whole person impairment" (one of the definitions of catastrophic impairment). The Desbiens case confirmed that catastrophic impairment status could be sought by a broader group of accident victims than many in the insurance industry maintained. Desbiens had been followed by the Court and the Financial Services Commission of Ontario (which regulates accident benefits) until the Judge at Mr. Kusnierz' October 2010 trial disagreed. In its ruling in Kusnierz, the Court of Appeal stated that it preferred Justice Spiegel's conclusion and reasons to those of Mr. Kusnierz' trial Judge.
The Kusnierz trial decision created uncertainty for both accident victims and insurers about the meaning of catastrophic impairment. The Court of Appeal decision in Kusnierz restores much needed clarity to the issue. It confirms that an accident victim does not have to establish catastrophic impairment on the basis of physical impairments alone, or psychological impairments alone, as Mr. Kusnierz' trial Judge concluded. Instead, the accident victim is entitled to have his or her psychological impairments combined with his physical impairments to determine if he or she is entitled to the protection provided by a catastrophic impairment designation.
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