Law Times

PAGE 10 Ruling says cumulative injuries may not equal catastrophic impairment FOCUS Kusnierz raises ire of plaintiffs' bar BY JUDY VAN RHIJN For Law Times ing impairments when assessing whether an injury is catastrophic received a nip and a tuck in a re- cent decision. In the case, Kusnierz v. The T Economical Mutual Insurance Co., the plaintiff's attempt to combine percentage ratings for physical and mental or behavioural disor- ders fell afoul of a stricter inter- pretation of the guidelines than has been the norm. The decision is causing consternation in the plaintiffs' bar as it condemns the practice of combining different impairments to reach the 55-per- cent threshold for a finding of catastrophic impairment under the statutory accident benefits schedule. The case, which is now under appeal, boils down to a philosophical disagreement over he liberal approach ad- opted by courts and tri- bunals towards combin- the purpose of insurance in On- tario. The plaintiff, Robert Kusni- erz, suffered the amputation of his left leg below the knee after a Christmas Eve automobile ac- cident in 2001. He has since suf- fered extreme difficulty in finding a suitable prosthetic due to the tendency of his stump to develop cysts. The court found Kusnierz to be a credible and honest wit- ness who deserved its sympathy, yet Superior Court Justice Peter Lauwers found this impairment totalled only 50 per cent and re- fused his application. It was common ground that if Kusnierz' physical injuries were combined with his mental and behavioural impairments, his rating would exceed 55 per cent and he would be deemed to be catastrophically impaired. Lau- wers, however, concluded that such a combination isn't permis- sible. In essence, he ruled that the guidelines don't permit mental and behavioural disorders to be assessed in percentage terms and combined for the purpose of de- termining whole-person impair- ment; that the structure of the benefits schedule reinforces the bright-line demarcation between mental and behavioural disorders and other impairments; and that this interpretation is consistent with the purpose of the specific provisions of provincial legisla- tion. As a result, he found Kusni- erz to have an impairment of 50 per cent. Harry Steinmetz of Fireman Steinmetz in Toronto has retained Paul Pape to conduct the appeal for Kusnierz. "I've spoken to hundreds of people about it," says Steinmetz. "There is lots of inter- est. One of the main arguments under discussion will be the issue of statutory interpretation." Steinmetz is very confident of the strength of his position and notes there's a lot of legal precedent that favours Kusnierz on appeal, including Desbiens v. Mordini. "Justice Lauwers was not a supporter of the decision in Desbiens unlike his colleagues and all the arbitrators." Lee Samis, a lawyer with Samis & Co. who represents the insur- ance company, agrees the appeal will turn on how to interpret the regulations. "There are cases that have a different outcome. The main one is Desbiens, but there the issue of interpretation was at- tacked in obiter. Other decisions don't have the fulsome analysis that's in Kusnierz." In examining whether his de- cision to refuse a combined total produced a just result for Kusni- erz, Lauwers considered the pur- pose of the legislation as follows: "Bill 59 aimed at reducing no- fault benefits to most people with the savings going to stabilize insur- ance premiums, while creating a narrow exception for people who were catastrophically impaired. The introduction of subjective mental and behavioural factors on such a broad basis would un- dermine the objective approach to the assessment of impairments that contribute to the calculation of [whole-person impairment] re- quired by the guides, and through them, by the [benefits schedule]." He also referred to the "highly structured framework that is quite precise and mathematical" pre- scribed by the benefits schedule. Lauwers agreed with Stein- metz' submission that an in- ability to combine mental and behavioural disorders with other impairments would clearly cre- ate a kind of gap in eligibility for catastrophic impairment bene- fits. While he expressed the view that this would be "unjust," he felt unable to depart from what he saw as the more natural way to interpret the regulations. "The result of a bright-line threshold like 55-per-cent [whole- person impairment] is that some people will meet it handily, others will fall far short, and some will come close. For those who come close, there is no discretion in the court, out of sympathy, to push the plaintiff over the line." Charles Flaherty of Flaherty Sloan Hatfield in Hamilton, Ont., strongly disagrees with the decision. "This judge cites the purpose of the legislation is to keep insurance rates in check, but this is consumer protection legis- lation," he says. "Where there is any ambiguity and uncertainty, it's supposed to be interpreted in favour of the insured. The courts were doing their job. Desbiens said, 'Look at the whole body, mind, and soul.' It's silly not to." In particular, Flaherty ob- jects to insurers' attempts to undermine the two-tier defini- tion of injuries. "Insurers asked for this in 1989 — that injuries be broken down into regular injuries and catastrophic inju- ries. They said there had to be a line. They made the line. Now the insurance companies fight, squirm, and wriggle to get out of it. What's the point of insur- ance? To repair us in situations of need." Flaherty notes that under the new insurance reforms, Kusnierz would be covered since the loss of a single limb now counts as a cat- astrophic injury. "Before, it was not automatically catastrophic. He had to wait and see how he did and how he managed to ac- commodate his loss. The doctors say he can't. It's not about insur- ance fraud. These are people with horrible injuries. They can't get up in the morning without help." Flaherty believes the real bat- tle isn't about rights but profits. "One prosthetic can cost $75,000 to $80,000. What if he needs five over 15 to 20 years? Who's going to pay for it? This case says you'd better go to the government or your family or some other in- surance company but not to the auto insurer. Why buy expensive insurance, as the government says you must, if you're not going to be covered?" LT Untitled-1 1 www.lawtimesnews.com 1/4/11 9:24:24 AM January 10, 2011 • Law Times

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