





CITATION:
Kusnierz v. Economical
          Mutual Insurance Company, 2011 ONCA 823



DATE: 20111223



DOCKET: C52946



COURT OF APPEAL FOR ONTARIO



MacPherson and LaForme JJ.A. and Hackland R.S.J. (
ad hoc
)



BETWEEN



Robert Kusnierz



Plaintiff (Appellant)



and



The Economical Mutual Insurance Company



Defendant (Respondent)



Paul J. Pape, David S. Steinberg and Shantona Chaudhury, for
          the appellant



Lee Samis and Lisa Armstrong, for the respondent



James L. Vigmond and Brian M. Cameron, for the intervener
          Ontario Trial Lawyers Association



Alan L.W. DSilva, Mark Walli and Vanessa Voakes, for the
          intervener Insurance Bureau of Canada



Heard: November 16, 2011



On appeal from the judgment of Justice Peter Lauwers of the
          Superior Court of Justice dated October 19, 2010, with reasons reported at
          2010 ONSC 5749.



MacPherson J.A.:



A.
INTRODUCTION

[1]

The appellant Robert Kusnierz was involved in a serious single vehicle
    accident ten years ago.  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.

[2]

Mr. Kusnierz was insured by the respondent insurance company.  He sought
    accident benefits under the
Statutory Accident Benefits Schedule  Accidents
    on or after November 1, 1996
, O. Reg 403/96 (
SABS
).  The
    respondent agreed that the appellant was entitled to some benefits.  However,
    the parties disagreed on the classification of the appellants injuries and on
    the quantum of benefits flowing therefrom.

[3]

The core of the dispute is this: if the appellant establishes
    catastrophic impairment, he is entitled to enhanced medical and
    rehabilitation benefits up to $1 million; otherwise, he is entitled to a
    maximum of $100,000.

[4]

The trial judge interpreted the relevant
SABS
provisions and
    concluded that the appellant could not establish the legal threshold of
    catastrophic impairment.  He dismissed the appellants action.

[5]

The appellant appeals from this judgment.

B.
FACTS

(1)
The parties and events

[6]

On December 24, 2001, Mr. Kusnierz, who was 29 years old, was a
    passenger in a car that veered off the road and rolled over several times.  His
    left leg was badly injured and had to be amputated below the knee.

[7]

The loss of part of his leg continues to be traumatic for Mr. Kusnierz,
    both physically and psychologically.  Since losing his leg, he has suffered
    ongoing deterioration of his stump, which has impeded his use of prostheses. 
    He has had ten different prostheses over the years.  Still, he is unable to
    wear a prosthesis half of the time due to poor fit and pain that he describes
    as unbearable.  Even with a prosthesis, he has trouble walking; he walks well
    only on level surfaces.

[8]

On days that Mr. Kusnierz cannot attach the prosthesis  due to
    recurring cyst formation, swelling of the stump, and resulting pain  he stays
    indoors and uses a walker or a wheelchair.

[9]

Mr. Kusnierz suffered other physical problems as a result of the
    accident, including sore shoulders, pain in his neck and lower back, headaches,
    visual disturbances, numb fingers, and soreness in his hips, knees and right
    ankle.

[10]

In addition to physical impairments, the accident has also left Mr.
    Kusnierz with significant ongoing psychological impairments.  He had no history
    of psychiatric problems before the accident, and the connection between his
    physical and psychological impairments is not disputed.  Ever since the
    accident, Mr. Kusnierz has withdrawn from other people emotionally and
    socially.  According to the Designated Assessment Centre team that assessed
    him, Mr. Kusnierzs psychological symptoms are severe and he likely meets the
    DSM-IV diagnostic criteria for both a major chronic depressive disorder and, to
    a lesser degree, post-traumatic stress disorder.

[11]

Finally, as a result of his disabilities, Mr. Kusnierz could not drive
    tractor trailers and lost his job.  Today, he lives with his wife whom he
    married in 2009.  He owns a trailer park/marina in St. William, a town near
    Port Dover, and is able to do some work on site.

(2)
The Agreed
    Statement of Facts and Issues

[12]

A more comprehensive summary of the facts, including a description of
    the extensive reports prepared by a large number of medical professionals, is
    not required because at the trial the parties filed an Agreed Statement of
    Facts and Issues, which provided:

1.         Kusnierz is a person entitled to SABS
  (Ontario  Regulation 403/96) benefits from Economical as a result of an accident which occurred on, or about, December 24, 2001.

2.         Kusnierz has applied to be considered as
    a person who has sustained a catastrophic impairment, as that term is
    used under the SABS.

3.         Kusnierz has been assessed on behalf of
    both parties in order to determine whether or not he has sustained a  catastrophic
    impairment.

4.         The assessors and the parties agree
    Kusnierz does not meet the definition of catastrophic impairment  pursuant
    to section 2(1.1) (a), (b), (c), (d), (e), or (g) of  the SABS and
    therefore that Kusnierz could only             possibly be considered to have
    met the definition of catastrophic impairment under clause (f) of    subsection
    (1.1) of section 2 of the SABS.

5.         The parties have identified two issues for
    determination by the Court:

A.       Whether
    it is permissible to assign percentage ratings in respect of
    Kusnierzs psychological impairments under clause 2(1.1)(g) of the SABS and
    combine them with percentage ratings in respect of Kusnierzs physical
    impairments under clause 2(1.1)(f) of the SABS, for the purposes of determining
    whether Kusnierz is catastrophically impaired pursuant to the SABS and the 4
th
Edition of the AMAs Guide to the Evaluation of Permanent Impairment?

It
    is conceded by Economical that if Kusnierzs physical and psychological
    impairments are combined he will meet the definition of catastrophic
    impairment.

B.        Secondly,
    if the combining of physical and psychological impairment ratings is not
    proper, has Kusnierz nevertheless sustained a catastrophic impairment on the
    basis of 2(1.1)(f) of the SABS alone?

6.         This
    agreement, the reports of assessors and experts related to catastrophic impairment
    and attendant care, as listed in the Joint Document Brief, and the American
    Medical Associations
Guides to the Evaluation of Permanent Impairment
,
    4th edition, 1993 constitute the entire record of these proceedings,    without
    restriction on the ability of the parties to call the plaintiff and the authors
    of any of these reports as witnesses to also give viva voce evidence.

(3)
The legislation

[13]

The relevant legislation in this case is s. 2 of the
SABS
, which
    provides:

2.
(1)
In this
    Regulation,

. . .

impairment means a loss or abnormality of a
    psychological, physiological or anatomical structure or function;

(1.1)

For the purposes of this Regulation, a
    catastrophic impairment caused by an accident that occurs before October 1,
    2003 is,

(a) paraplegia or quadriplegia;

(b) the amputation or other impairment causing the
    total and permanent loss of use of both arms;

(c) the amputation or other impairment causing the
    total and permanent loss of use of both an arm and a leg;

(d) the total loss of vision in both eyes;

(e) brain impairment that, in respect of an
    accident, results in,

(i) a score of 9 or less on the Glasgow Coma
    Scale, as published in Jennett, B. and Teasdale, G.,
Management of Head
    Injuries
, Contemporary Neurology Series, Volume 20, F.A. Davis Company,
    Philadelphia, 1981, according to a test administered within a reasonable period
    of time after the accident by a person trained for that purpose, or

(ii) a score of 2 (vegetative) or 3 (severe
    disability) on the Glasgow Outcome Scale, as published in Jennett, B. and Bond,
    M.,
Assessment of Outcome After Severe Brain Damage
, Lancet i:480, 1975,
    according to a test administered more than six months after the accident by a
    person trained for that purpose;

(f) subject to subsections (2) and (3), an
    impairment or combination of impairments that, in accordance with the American
    Medical Associations
Guides to the Evaluation of Permanent Impairment
,
    4th edition, 1993, results in 55 per cent or more impairment of the whole
    person; or

(g) subject to subsections (2) and (3), an
    impairment that, in accordance with the American Medical Associations
Guides
    to the Evaluation of Permanent Impairment
, 4th edition, 1993, results in a
    class 4 impairment (marked impairment) or class 5 impairment (extreme
    impairment) due to mental or behavioural disorder.

. . .

(3)
For the
    purpose of clauses (1.1) (f) and (g) and (1.2) (f) and (g), an impairment that
    is sustained by an insured person but is not listed in the American Medical
    Associations
Guides to the Evaluation of Permanent Impairment
, 4th
    edition, 1993 shall be deemed to be the impairment that is listed in that
    document and that is most analogous to the impairment sustained by the insured
    person.

(4)
The trial judgment

[14]

The trial judge delivered comprehensive, well-organized and clear
    reasons for judgment.

[15]

Early in his reasons, the trial judge noted that the essence of the trial
    was an exercise in statutory interpretation, essentially confirming the
    underlying purpose of the parties Agreed Statement of Facts and Issues. 
    Concerning Mr. Kusnierz, the trial judge stated:

Mr. Kusnierz was a credible and honest witness who
    did not embellish his evidence.  He has suffered much and continues to suffer
    from the results of his injuries.  He deserves the sympathy of the court.

[16]

The trial judge then turned to the two legal issues set out in the
    Agreed Statement of Facts and Issues.

[17]

On the first issue, he concluded that it was not permissible to combine cls.
    2(1.1)(f) and 2(1.1)(g) of the
SABS
in determining whether a person was
    catastrophically impaired.

[18]

With cl. 2(1.1)(g) of the
SABS
off the table, the trial judge
    turned to an assessment of Mr. Kusnierz under cl. 2(1.1)(f) standing alone.  He
    concluded that Mr. Kusnierz had not established the whole person impairment
    (WPI) of 55 per cent required by this provision.

[19]

The appellant appeals from the trial judgment.  He contends that the
    trial judge erred in his answers to both of the questions posed in the Agreed
    Statement of Facts and Issues.

[20]

By order of OConnor A.C.J.O. dated September 9, 2011, the Ontario Trial
    Lawyers Association and the Insurance Bureau of Canada were granted leave to
    intervene in this appeal.  The Trial Lawyers Association made submissions in
    support of the appellants position.  The Insurance Bureau made submissions in
    support of the respondents position.

C.
ISSUES

[21]

The issues are:

(1)       Did the trial judge err by concluding that the
SABS
do not permit an assessor to assign a whole body impairment
    percentage value to Chapter 14 mental and behavioural impairments in order to determine
    whether they, in combination with physical impairments, result in a 55 per cent
    whole person impairment constituting a catastrophic impairment under cl. 2(1.1)(f)?

(2)      If the answer to Question (1) is No, then
    did the trial judge err by concluding that Mr. Kusnierz physical injuries did
    not result in whole person impairment of 55 per cent, and therefore did not
    constitute a catastrophic impairment under cl. 2(1.1)(f) of the
SABS
?

D.
ANALYSIS

(1)
Can mental and behavioural
    impairments be assessed under cl. 2(1.1)(f)
?

[22]

The trial judge concluded that it was not permissible to consider mental
    and behavioural impairments under cl. 2(1.1)(f) of the
SABS
.  He
    summarized his conclusion in this fashion:


I find
    that it is not permissible under the SABS to assign percentage values to mental
    and behavioural disorders under Chapter 14 of the Guides (which is referred to
    in clause 2(1.1)(g) of the SABS), and then combine them with the percentage
    values derived from impairments assessed under the other chapters of the Guides
    (referred to in clause 2(1.1)(f) of the SABS) in determining whether an
    individual meets the catastrophic impairment threshold of 55 per cent or more
    impairment of the whole person prescribed by clause 2(1.1)(f) of the SABS.

I reach this conclusion for the following reasons,
    in a nutshell:

(i)        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;

(ii)       The structure of the SABS reinforces
    the bright line demarcation between mental and behavioural disorders referred
    to in Chapter 14 of the AMA Guides  specifically referred to in clause
    2(1.1)(g) of the SABS  from the impairments assessed under the other chapters
    of the Guides which are referred to in clause 2(1.1)(f) of the SABS; and

(iii)     This interpretation is consistent
    with the purpose of the specific provisions of Bill 59 and the SABS that this
    issue engages.

[23]

I begin by noting, parenthetically, that the Guides referred to by the
    trial judge in the above summary are the American Medical Associations
Guides
    to the Evaluation of Permanent Impairment
, 4th ed. (Chicago: American
    Medical Association, 1993), which are explicitly designated as the frame of
    reference for the impairments described in cls. 2(1.1)(f) and (g) of the
SABS
.

[24]

With respect, I do not agree with the trial judges conclusion and his
    reasons in support of it.  I prefer the opposite conclusion and the reasons of
    Spiegel J. in
Desbiens v. Mordini
, [2004] O.J. No. 4735 (S.C.) and J.R.
    MacKinnon J. in
Arts (Litigation Guardian of) v. State Farm Insurance Co.
(2001), 91 O.R. (3d) 394 (S.C.), leave to appeal denied, [2008] O.J. No. 5740
    (S.C.).  The language of the
SABS
, the purpose of the
Guides
, the
Guides
 references to combining physical and psychological impairments,
    and the goals of the
SABS
lead me to conclude that the combination of
    physical and psychological impairments is appropriate under cl. 2(1.1)(f).

[25]

First, in my view a proper interpretation of the words of cl. 2(1.1)(f)
    of the
SABS
is consistent with the appellants interpretation.  On this
    point, I can do no better than set out, and expressly adopt, Spiegel J.s
    analysis in
Desbiens
:

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
[1]
itself indicates that the drafters clearly intended the definition of
    "catastrophic impairment" to be inclusive rather than restrictive.

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.

Secondly, clause (f) ensures that persons who do
    not suffer any of the specific injuries or conditions described in the other
    clauses of ss. 5(1)
[2]
,
    but nevertheless have an impairment, or a combination of impairments, that is
    so severe that they are among those with the greatest need for health care are
    able to recover the expenses of that health care.  In effect the
    legislature, with clause (f), included a catch-all provision for the benefit of
    those who were likely in the greatest need of health care.

Thirdly, in order to ensure that no impairments
    were overlooked in determining whether the requirements of clause (f) and (g)
    were met, the analogous impairment provision, ss. 5(3)
[3]
was included.  This provision comes into play where an impairment is
    sustained that is not listed in the Guides.

Fourthly, there is nothing in the text of the
    Regulation that suggests that a combination of physiological and psychological
    impairments is not permitted. Indeed clause (f) permits
any
combination
    of impairments, both physical and psychological. The only requirement is that
    these impairments must result in a 55% WPI "in accordance with" the
    Guides. While the definition in clause (g) does not include mild or moderate
    psychological impairments there is nothing in the Regulation that prohibits
    such impairments from being considered under clause (f). If the intention were
    to exclude psychological impairments from clause (f), the insertion of the word
    physiological before the word impairment[s] would easily have achieved that
    purpose. [Emphasis in original.]

[26]

The trial judge noted that the
SABS
legislator could have, but
    did not, expressly provide for the combination of physical and psychiatric
    injuries.  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.

[27]

Second, the purpose of the
Guides
supports combination.

In
    my view the trial judge erred by concluding that combining physical and
    psychiatric impairments would contradict the express purpose of the Guides,
    which is to provide a system for evaluating impairments that is objective and
    standardized.  With respect, this ignores the
Guides
parallel aim of
    assessing the total effect of a persons impairments on his or her everyday
    activities.  An objective, standardized system of assessment is only useful to
    the extent that it can reflect persons actual levels of impairment.  To
    disregard the mental and behavioural consequences of a persons injuries
    because they are too hard to measure would defeat the purpose of the
Guides
. 
    This is reflected by the fact that the
Guides
, at p. 301, after
    cautioning against quantifying Chapter 14 impairments in percentage terms in
    ordinary cases, go on to allow quantification where necessary:

Physicians, of course, must often make judgments
    based more on clinical impressions than on accurate, objective, analytic
    empiric evidence.  In those circumstances where it is essential to make an
    estimate, the ordinal or numeric scale might be of some general use.

[28]

Third, the
Guides
describe a number of situations where an
    assessment of a persons physical impairment should take into account Chapter
    14 mental and behavioural impairments:

·

At p. 230 (Facial Disfigurement): We recommend that total
    disfigurement of the face after treatment be deemed a 15% to 35% impairment of
    the whole person.
For the assessment of impairment related to mental and
    behavioral aspects of disfigurement, the reader may refer to the chapter on
    mental and behavioral disorders
[Chapter 14].

·

At p. 275 (Mammary Glands): A female patient of childbearing
    age with absence of the breasts, a patient with galactorrhea sufficient to
    require the use of absorbent pads, and a male patient with painful gynecomastia
    that interferes with the performance of daily activities would each have a 0%
    to 5% impairment of the whole person.
If there were a coexisting
    psychiatric impairment, the whole-person impairment would be greater
.

·

At p. 279 (Disfigurement): With disfigurement there is usually
    no loss of body function and little or no effect on the activities of daily
    living.  Nevertheless, disfigurement may impair by causing social rejection or
    an unfavorable self-image with self-imposed isolation, life-style alteration,
    or other behavioural changes.
If impairment due to disfigurement does
    exist, it is usually manifested by a change in behaviour, such as withdrawal
    from social contacts, in which case it would be evaluated in accordance with
    the criteria with the Guides chapter on mental and behavioral conditions.


·

At p. 284 (Examples of Class 2 Skin Impairments): In example 5, a
    patient is assessed as having a 20% impairment due to chemically induced nail
    dystrophy, which is to be
combined
using the Combined Values Chart (p.
    322) with an appropriate value for the paresthesia (see the part on the hand in
Guides
chapter on the musculoskeletal system) to estimate the
    whole-person impairment.
A mental and behavioral impairment (Chapter 14, p.
    291) might further increase the estimate
.

·

At p. 285 (Examples of Class 3 Skin Impairments): In example 1, a
    patient is assessed as having a 30% impairment due to the skin disorder,
which
    is to be increased by an amount that is proportional to the estimated mental
    and behavioural impairment
(see Chapter 14).  [Emphasis added.]

[29]

In his judgment, the trial judge noted the two skin examples, but wrote
    that [t]he principle of interpretation known as implied exclusion, or, in
    Latin, 
expressio unius est exclusion alterius
, has obvious and
    reasonable application (footnote omitted).  With respect, this application of
    the
expressio unius
principle is incorrect.

[30]

In my view, the
Guides
examples are illustrative, rather than
    exhaustive.  In at least five places, the
Guides
recommend that
    physicians refer to Chapter 14 in assessing the total impairment of persons
    suffering from both physical and behavioural/mental impairments.  These
    recommendations reflect the principle that a total impairment assessment must
    take both physical and psychiatric impairments into account.  There is nothing
    in the text of the
Guides
to suggest that this principle should be
    limited to persons with mammary gland or disfigurement problems.  Accordingly,
    it seems to me that combining physical and psychiatric impairments can be done
    in accordance with the
Guides
.

[31]

Fourth, this combination produces results that are consistent with the
    purposes of the
SABS
.  The trial judge noted that the
SABS
were designed
    to make catastrophic impairments exceptional, and that allowing combinations
    of psychiatric and physical impairments would expand the number of persons
    deemed to be catastrophically impaired.  With respect, interpreting 2(1.1)(f)
    to allow assessment of physical impairments in combination with psychiatric
    impairments is not inconsistent with ensuring that catastrophic impairments
    remain rare.  At oral argument, the respondent conceded that there are only a
    very few cases where there are permanent physical impairments and permanent
    psychiatric impairments that are not catastrophic if assessed separately, but
    are catastrophic if assessed together.  Accordingly, the class of persons
    entitled to catastrophic impairment benefits will remain small under either
    interpretation.

[32]

Finally, allowing combination promotes fairness and the objectives of
    the statutory scheme.  The trial judge acknowledged that interpreting the
SABS
and the
Guides
to prevent mental and behavioural impairments from being
    considered under cl. 2(1.1)(f) would leave a gap in the definition of
    catastrophic impairment. I agree that it seems unfair to deny to persons with
    combined physical and psychiatric impairments the enhanced benefits that are
    available to persons with similarly extensive impairments that fall entirely
    into one category or the other.

[33]

However, while the trial judge concluded that resolving the unfairness
    would require an inappropriate deviation from the clear intentions of the
    legislature, I do not agree that the legislator chose to forbid the
    combination of physical and psychiatric impairments.  Respectfully, I do not
    read the
Guides
, or the
SABS
, as articulating a policy position
    against combination.  Although the
Guides
do warn against assigning
    percentages to non-neurological psychiatric impairments, there are, as
    discussed above, a number of indications that combination may be permissible
    under certain circumstances.

[34]

For these reasons, I would conclude that the trial judge erred in his
    answer to the question posed in the first issue.
[4]

(2)
The threshold under cl. 2(1.1)(f)
    standing alone

[35]

In light of the conclusion on the first issue, it is not necessary,
    strictly speaking, to address the second issue.  However, for the sake of
    completeness, I would record that I can see no palpable and overriding error
    (the appellant concedes that this is the proper test) in the trial judges
    analysis and calculation of the gait derangement and skin impairment components
    of the appellants injuries.  Accordingly, I would not allow the appeal on this
    ground.

E.
DISPOSITION

[36]

I would allow the appeal, set aside the judgment of the trial judge, declare
    that the appellant meets the definition of catastrophic impairment under cl.
    2(1.1)(f) of the
SABS
and, accordingly, is entitled to enhanced medical
    and rehabilitation benefits thereunder, and direct the respondent to pay such
    benefits to the appellant.

[37]

The appellant is entitled to his costs of the appeal.  If the parties
    cannot agree on costs, the appellant may make his submissions within 21 days of
    the release of this decision, and the respondent may make its submissions
    within 14 days thereafter.

RELEASED:  December 23, 2011 (J.C.M.)

J.C. MacPherson J.A.

I agree H.S. LaForme J.A.

I agree Hackland J. (
ad hoc
)





[1]
In
Desbiens
, Spiegel J. was interpreting the definition of catastrophic
    impairment contained in s. 5(1) of the regulation
Court Proceedings for
    Automobile Accidents that Occur on or after November 1, 1996
, O.Reg.
    461/96, which is substantially identical to
SABS
cl. 2(1.1). SABS cl.
    2(1.1)(f) does differ slightly in referring to an impairment or combination of
    impairments while 5(1)(f) refers to any impairment or combination of
    impairments. The two regulations were made at the same time.



[2]
Compare
SABS
s. 2(1.1).



[3]
Compare
SABS
s. 2(3).



[4]
In reaching this conclusion, I have not referred to the fresh evidence that the
    appellant sought to introduce, namely, evidence of the legislative purpose of
    the definition of catastrophic impairment in the
SABS
in issue in this
    appeal.  The proposed fresh evidence consists of the transcripts of the
    hearings of the Standing Committee Report, and transcripts of the Legislative
    Assembly debates on Bill 59.  I would not admit the fresh evidence.  It does
    not meet three of the four criteria set out in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759.  The evidence could have been adduced at trial, it is not
    relevant, and it could not reasonably be expected to have affected the result.


