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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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