Creating Confusion around Kusnierz

I have read the article published under my byline in Canadian Underwriter regarding the Kusnierz Ontario Court of Appeal decision. (Neil P. Wheeler, ‘Clarifying Catastrophe,’ February 2012). I was pleased to provide comment regarding this important case.

I note that you made a number of edits to the article I submitted. While I appreciate your intention was undoubtedly to assist your readers, there are now a few inaccuracies and omissions in the published article that I wish to bring to your attention. I have outlined them below.

First, the subheading under the article’s title refers to “a catastrophic injury.” This should read “a catastrophic impairment.” Of the two terms, the latter is the relevant defined legal term in Ontario’s motor vehicle legislation.

Second, in the article’s published form, some readers may find it difficult to understand what catastrophic impairment means and why it is important. In the article I submitted, I included two paragraphs under a section called ‘Background’ that explained the meaning of catastrophic impairment and why it is important. I also included the two relevant definitions of catastrophic impairment. Those paragraphs were not included in the published version of the article.

Regarding the meaning and importance of catastrophic impairment, the following comment from my original article may assist: “In Ontario, an injured person’s entitlement to apply for statutory accident benefits (often called “no-fault” benefits) is greatly expanded if he or she is able to satisfy at least one of several legislated definitions of catastrophic impairment. In tort lawsuits arising from car accidents occurring between Nov. 1, 1996 and Sept. 30, 2003, an injured person must establish a catastrophic impairment to recover health care expenses. While a catastrophically impaired person must still prove entitlement to benefits or expenses, the determination of catastrophic impairment dramatically affects that person’s potential entitlement. It also frequently affects the extent to which an injured person regains pre-accident functioning and quality of life.”

Regarding the definitions of catastrophic impairment, the definition initially referred to in the second paragraph of the first page of the published article — the published version uses the short form ‘55% per cent definition’ — is as follows: “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, results in 55% or more impairment of the whole person.” The second definition initially mentioned in the second paragraph of the first page of the published article, using the short form “mental/behavioural definition,” refers to an impairment that, in accordance with the Guides, “results in a class 4 impairment (marked impairment) or class 5 impairment (extreme impairment) due to mental or behavioural disorder.”

Third, in the fourth paragraph on the first page, the phrase “the province’s insurance regulator,” used to describe the Financial Services Commission of Ontario (FSCO), was inserted in the published version. A preferable description would be “the province’s accident benefits regulator.” The editor also inserted text in this paragraph indicating that FSCO created an expert panel in December 2010. My original article did not address how or when the panel was created, and stated only that the panel had been directed by FSCO to consider the definitions of catastrophic impairment, and that the panel had issued its report in April 2011.

Fourth, in the fourth full paragraph on the second page, Mr. Desbiens’ first name was inserted in the final version. His first name should read “Phillipe.”

Fifth, in the first full paragraph in the third column on the second page, when describing the relevant text, the phrase “American Medical Association’s…” should not be italicized. The title of the text is Guides to the Evaluation of Permanent Impairment, and only the title should be italicized. Also, a phrase was added in the published version indicating that this text was “used to define impairments under SABs.” More accurately, the text is used to consider the 55% and mental/behavioural definitions of catastrophic impairment.

I trust that the above will assist your readers. Thank you.

Neil. P Wheeler, Lerners LLP (Toronto).

Apology

Canadian Underwriter did in fact make the editorial amendments as indicated in the author’s letter. Canadian Underwriter wishes to make it clear the responsibility for the errors and omissions appearing in the published version of the article
under Neil P. Wheeler’s byline lies with the magazine’s editor and not with the author. We sincerely apologize to Neil Wheeler for introducing these editorial inaccuracies. We regret that they may have contributed to misunderstandings about the subject matter, rather than assisting our readers, as was our intent.