Canadian Underwriter

Psychological and physical impairments can be combined to determine catastrophic impairment: Ontario Appeal Court

January 3, 2012   by Canadian Underwriter

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Psychological impairments can be combined with physical impairments for the purpose of determining whether an injured person meets the 55% threshold for a catastrophic impairment of the whole person, the Ontario Court of Appeal has ruled in Kusnierz v. Economical Mutual Insurance Company.
The Appeal Court ruling overturned the opposite finding made by an Ontario Superior Court trial judge. The Ontario Superior Court judge found that the province’s Statutory Accident Benefits Schedule (SABS) did not allow for psychological injuries to be combined with physical injuries for the purpose of determining catastrophic impairment of the whole person.
The Court of Appeal ruling is of interest to insurers, who have argued that combining psychological impairments with physical impairments effectively expands the definition of catastrophic impairments beyond that contemplated by the legislation.
Auto injury victims deemed to be catastrophically impaired are entitled to a limit of up to $1 million in medical and rehabilitation benefits instead of a limit of $100,000.
The appellant in the case, Robert Kusnierz, was involved in a serious single vehicle accident 10 years ago (he was 29 years old at the time). He suffered numerous physical and psychological injuries as a result of the accident, including the loss of his left leg below the knee and clinical depression.
The Ontario Superior Court ruled that his psychological injuries should not have been combined with his physical injuries in the assessment of whether he met the 55% threshold for a whole person catastrophic impairment.
But in a unanimous decision by a three-judge panel, the Appeal Court decided Kusnierz in a manner consistent with the Ontario Superior Court’s decision in Desbiens v. Mordini. In Kusnierz, the Appeal Court quoted extensively from Desbiens in support of its finding that psychological impairments can be combined with physical impairments in determining catastrophic injuries under the SABs.
“While Bill 59 allows only those who have suffered a catastrophic impairment to recover health care expenses in my view, the text of the Regulation itself indicates that the drafters clearly intended the definition of ‘catastrophic impairment’ to be inclusive rather than restrictive,” the Appeal Court wrote, quoting from Desbiens. “Firstly, as has been noted, the definition of ‘impairment’ as meaning ‘a loss or abnormality of a psychological, physiological or anatomical structure or function’ is extremely broad. Indeed it is difficult to conceive of a more inclusive definition.”
The Appeal Court went onto note the relevant section of SABS, clause 2(1.1)(f), which says: “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 per cent or more impairment of the whole person.”
The phrase “combination of impairments” does not rule out the possibility that psychological impairments might be among those to be combined, the Appeal Court found. The trial judge had found that because the terminology “psychological impairments” was absent from this section, they weren’t intended to be among the impairments to be combined.
“The trial judge noted that the SABS legislator could have, but did not, expressly provide for the combination of physical and psychiatric injuries,” the Appeal Court found. “With respect, the opposite is also true. The legislator could have, but did not, expressly forbid the combination of physical and psychiatric injuries.
“Without qualification either way, the plain language of cl. 2(1.1)(f) seems to suggest that combination of both kinds of impairment is possible.”

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