Kusnierz v. Economical Mutual Insurance Company

Kusnierz v. Economical Mutual Insurance Company

 Kusnierz v. Economical Mutual Insurance Company, 2011 ONCA 823

 

In a much anticipated decision, the Ontario Court of Appeal overturned the findings of Lauwers J. and found that physical and psychological impairments can be combined to determine catastrophic impairment under cl. 2(1.1) (f) of the Statutory Accident Benefit Schedule (SABS).

Facts:

The plaintiff suffered injuries in a motor vehicle collision which resulted in a below-the-knee amputation of his leg.  In addition to his physical impairments associated with the loss of the leg, the plaintiff also suffered from significant psychological impairments.

The plaintiff took the position that he was catastrophically impaired in accordance with the SABS.  Specifically, that he was catastrophically impaired in accordance with a combination of cl. 2(1.1)(f) and 2(1.1)(g) of the SABS. The relevant sections read:

(f) subject to subsections (2) and (3), an impairment or combination of impairments that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (Guides), results in 55 per cent or more impairment of the whole person;

(g) subject to subsections (2) and (3), an impairment that, in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.

SCJ

At trial, Lauwers J. concluded that it was not permissible to combine cl. 2(1.1) (f) and 2(1.1) (g).  He further found that the plaintiff did not suffer a 55 per cent impairment under cl.2 (1.1) (f) alone.  He concluded that combining physical and psychological impairments would be an inappropriate deviation from the “clear intentions of the legislature”

COA

The plaintiff appealed the decision.  On appeal MacPherson J.A. overturned the trial level decision in favour of the reasons employed by Spiegel J. in Desbiens v. Mordini (2004) O.J. No. 4735 (S.C.) [Desbiens].   In making his conclusion, Macpherson J.A. considered:

“the language of the SABS, the purpose of the Guides, the Guides’ references to combining physical and psychological impairments and the goals of the SABS.”

At pp. 25-26 MacPherson J.A. expressly endorsed the reasons and conclusions employed in Desbiens, finding that the plain language of cl. 2(1.1) (f) allows for a combination of physical and psychological impairment.

At p. 27 MacPherson J.A. noted that the trial judge ignored the Guides’ aim of assessing the total effect of a person’s impairments on his or her everyday activities. MacPherson J.A. found that:

An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment.  To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.

At pp. 28-30 MacPherson J. listed a number of situations in which the Guides expressly recommend for an assessment of a person’s physical impairment to take into account mental and behavioural impairments.  He concluded that the Guides’ examples are illustrative, rather than exhaustive and that:

[t]hese recommendations reflect the principle that a total impairment assessment must take both physical and psychiatric impairments into account…  Accordingly, it seems… that combining physical and psychiatric impairments can be done “in accordance with” the Guides.

At paragraph 31 MacPherson J. found that combining physical and psychological impairments produces results which are consistent with the purposes of the SABS.

At paragraph 32 MacPherson J. concluded that   allowing a combination of physical and psychological impairments “promotes fairness and the objectives of the statutory scheme.”

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.