Key personal injury case heads to appeal court this week

A key case that raised eyebrows among the personal injury bar will be before the Ontario Court of Appeal this week.

Kusnierz v. The Economical Mutual Insurance Co. took a restrictive approach to the question of combining physical and psychological injuries when determining whole-body impairment. The plaintiff, Robert Kusnierz, had his left leg amputated following an automobile accident in 2001. He has since found it difficult to find a suitable prosthetic, and while Superior Court Justice Peter Lauwers deemed him to be a credible witness, he determined his impairment to be short of the 55-per-cent catastrophic threshold.

Noting recent legislative changes to reduce benefits in order to contain auto insurance premiums, Lauwers said the statutory accident benefits schedule makes a bright-line demarcation between mental and behavioural disorders and other impairments. “The guides deliberately do not permit the mental and behavioural disorders in Chapter 14 to be assessed in percent terms and combined with the percentage values derived from impairments assessed under the other chapters of the guides for the purpose of determining whole person impairment,” Lauwers wrote last October.

The decision came as a surprise to plaintiffs’ lawyers who worry that interpreting the legislation in that way will lead to unjust results for their clients. Harry Steinmetz of Fireman Steinmetz in Toronto retained lawyer Paul Pape to conduct the appeal for Kusnierz that’s set for Wednesday. Also appearing for Kusnierz is Pape’s colleague David Steinberg. Lee Samis, of Samis & Co., is representing the insurance company. The case has also attracted at least three interveners.

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