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Kusnierz raises ire of plaintiffs’ bar

|Written By Judy Van Rhijn

The liberal approach adopted by courts and tribunals towards combining impairments when assessing whether an injury is catastrophic received a nip and a tuck in a recent decision.

In the case, Kusnierz v. The Economical Mutual Insurance Co., the plaintiff’s attempt to combine percentage ratings for physical and mental or behavioural disorders fell afoul of a stricter interpretation 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 the purpose of insurance in Ontario.

The plaintiff, Robert Kusnierz, suffered the amputation of his left leg below the knee after a Christmas Eve automobile accident in 2001. He has since suffered 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 witness who deserved its sympathy, yet Superior Court Justice Peter Lauwers found this impairment totalled only 50 per cent and refused 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.

Lauwers, however, concluded that such a combination isn’t permissible. 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 determining whole-person impairment; 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 legislation. As a result, he found Kusnierz 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 interest. 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 insurance 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 attacked in obiter. Other decisions don’t have the fulsome analysis that’s in Kusnierz.”

In examining whether his decision to refuse a combined total produced a just result for Kusnierz, Lauwers considered the purpose of the legislation as follows: “Bill 59 aimed at reducing no-fault benefits to most people with the savings going to stabilize insurance 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 undermine the objective approach to the assessment of impairments that contribute to the calculation of [whole-person impairment] required by the guides, and through them, by the [benefits schedule].”

He also referred to the “highly structured framework that is quite precise and mathematical” prescribed by the benefits schedule.

Lauwers agreed with Steinmetz’ submission that an inability to combine mental and behavioural disorders with other impairments would clearly create a kind of gap in eligibility for catastrophic impairment benefits. 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 legislation,” 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 objects to insurers’ attempts to undermine the two-tier definition of injuries. “Insurers asked for this in 1989 - that injuries be broken down into regular injuries and catastrophic injuries.

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 insurance? 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 catastrophic injury.

“Before, it was not automatically catastrophic. He had to wait and see how he did and how he managed to accommodate his loss. The doctors say he can’t. It’s not about insurance fraud. These are people with horrible injuries. They can’t get up in the morning without help.”

Flaherty believes the real battle 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 insurance 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?”

  • Just or unjust?

    Dumb Adjuster
    Why not focus on what is truly just, rather than an artificial and utterly confusing distinction (based on criteria that will always be out of date), that has cost us all a fortune to argue (taking funding from the injured people who need it the most), and will continue to do so for the forseeable future? Why not eliminate the catastrohpic definition altogether, and go back to a fixed (with increased optional) med/rehab limit with the only test being reasonable and necessary?
  • the OCA

    To Just a Dumb Lawyer:
    You write: "Lets see what the OCA has to say."
    Precisely my point. It might well be that Kusnierz - one of the bookend cases justifying the need for this scientific panel will be decided in a manner congruent with Desbiens - in which case the medical experts will be left with no legal contradiction to resolve. Rather they will be left to provide a medical interpretation of the relevant statute which FSCO will then substitute for the prevailing legal interpretation.
    But forget that. What about this? Given, as you say, the selection of this expert panel too so long - wouldn't one expect that none of the highly qualified, scientific, impartial appointees would have accumulated a significant amount of prior adverse judicial comment (rebukes) for substandard, poorly constructed or otherwise flawed catastrophic assessments?
  • 1+1=?

    Numb Skull
    It is a very sad state of affairs when one has to add the number of body parts (or lack thereof) to arrive at a magical number that will determine the eligibility for benefits. The time has come to throw out all those schemes (or shams if you ask some of your colleagues) and adopt simple and plain language legislation and insurance policies. Enough with the legislative attempts to limit the rights and entitlements of litigants. Let the lawyers to their jobs and the courts make decisions. The pre-cap or pre-threshold era was not that bad....oh yeah I forgot....a couple of bad claim examiners gave away the farm too many times and the lawmakers were convinced by the Insurance Industry that the lawyers and the victims had to pay the price for those mistakes. Yep, sounds like good, solid, fair and reasonable policy to me....not.
  • Don\'t be confused Brian

    Just a Dumb Lawyer
    FSCO's panel was in the works long before Kusnierz. It was mandated to occur in conjunction with the Five Year review, where the CAT definition was being left for another day to deal with. FSCO's appointment of a panel was the opposite of a rush. It took a lot longer than most expected. As for the issue of "settled law", you will see that all of the FSCO cases relied heavily on Desbiens. No one, Justice Spiegel included, expected Desbiens to be the last word on the subject. Yet the FSCO appeals officer managed to get every CAT related appeal. Coincidentally, before working at FSCO that appeals officer was Justice Spiegel's junior. Perhaps then it was not a surprise that FSCO has viewed Desbiens with a reference previously reserved only for unanimous Supreme Court of Canada decisions. Good on Economical to have pushed this one. Good on Justice Lauwers to have looked at it critically. Lets see what the OCA has to say.
  • "statutory interpretation" - medical or legal ?

    Almost before the ink was dry; FSCO announced it would be appointing a panel of impartial, scientific/medical experts to decide how to properly determine what counts as a "catastrophic" impairment. The FSCO announcement juxtaposed this case against Desbiens (ignoring many others and curiously overlooking a string of FSCO cases that have dealt with this very same question) as justification for the creation of a this panel. One recent FSCO case states the proper approach is now "settled law". So why the FSCO rush to appoint a medical panel to decide the proper approach to "statutory interpretation". Doesn't FSCO trust the decisions of its own Arbitrators? And why didn't FSCO wait for the results of the pending appeal decision which may turn out to be more congruent with Desbiens (and a host of FSCO cases)? But given FSCO won't wait - why didn't it appoint a panel of legal scholars (rather than doctors) to settle the question of how to interpret the relevant statute? Do doctors (even "dissidents" from the Brigham school) have some special knowledge or insight about interpreting legal statutes? Now the proper legal interpretation is too be decided not by judges but by some the very medical experts/combantants who have repeatedly battled this out before a series of triers of fact. I'm confused.

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