Ontario Court of Appeal Favours Desbiens Approach in Catastrophic Injury Determinations
Accident victim’s rights to expansive first party or “no-fault” benefits in catastrophic cases has been boosted by the recent decision in Kusnierz v. The Economical Mutual Insurance Company, 2010 ONSC 5749 (CanLII). The decision overturns the trial decision.
At trial the judge determined that psychological impairments could not be considered in conjunction with physcal impairments to determine catastrophic impairment. The Court of Appeal has ruled that both areas of injury can be considered and combined to determine whole body impairments. This is consitent with the findings in the case of Desbiens where the trial judge followed an approach now confirmed by the Court of Appeal.
First party or “no-fault benefits” have recently been gutted by the Provincial Government at the request of the auto insurance industry with the implimentaiton of the Minor Injury Guildines. Entitlements under the Guidelines are arguably the lowest in North America, and on a cost for benefits scale, argueably the most expensive. The insurance industry is presently lobbying the Government hard to further erode benefits by radically altering the definition of catasrophic impairments and reducing the benefits available to catastrophic accident victims.
The Kusnierez decision is rare good news for those who must rely upon insurance in times of great need.
