In Desbiens v. Mordini, Mr. Justice Harvey Spiegel has written a very lengthy, comprehensive set of reasons in a personal injury case in which one of the key issues was the interpretation of “catastrophic impairment” in Regulation 461/96 of the Insurance Act . (You can access the text of the decision by clicking on the case name in the first line of this paragraph.)
The case involved a plaintiff who, when he was injured in a 1999 MVA, was already a paraplegic as a result of a 1986 accident on the job. The principal injuries suffered in the 1999 MVA were a fractured right femur and soft tissue injuries.
It was conceded that the MVA injuries met the Bill 59 threshold. But the defence disputed the plaintiff’s contention, that as a result of the MVA, he had suffered a “catastrophic impairment”, entitling him to claim health care expenses. (The Insurance Act would have precluded a claim for health care expenses in the absence of a finding of catastrophic impairment.)
As you might imagine, the defence argued that the 1999 accident had not greatly worsened the plaintiff’s condition; in other words, that the MVA had not caused the plaintiff to suffer a catastrophic impairment, given his grievous pre-MVA condition.
The determination of whether the plaintiff was or was not “catastrophic” pitted two expert witnesses against each other. The plaintiff’s principal expert was physiatrist Dr. Gail Delaney, while the defence expert was Dr. Arthur Ameis.
The court accepted the evidence of Dr. Delaney in preference to that of Dr. Ameis. It is instructive to note that Dr. Delaney conducted what even Dr. Ameis admitted was a superior clinical examination of the plaintiff. She used a “goniometer”, which is an instrument used to take precise measurements of range of motion. Dr. Ameis, on the other hand, “eyeballed” measurements in his examination. The court found this to be signficant.
Dr. Delaney concluded that the plaintiff had suffered a catastrophic impairment in the 1999 MVA. It appears that Dr. Ameis’ main criticism of her opinion was that she had not properly the “AMA Guides to the Evaluation of Permanent Impairment”. (The Ontario legislation mandates the use of the AMA “Guides” for catastrophic assessments.)
After a detailed (and we mean detailed) review of Dr. Delaney’s assessments of the various parts of the plaintiff’s body, Justice Spiegel concluded that the plaintiff had suffered a “whole person impairment” or “WPI” of 40 percent, wihtout taking into account the pre-accident paraplegia. An impairment of 55% is required for a finding of “catastrophic impairment”.
The question was, how should the plaintiff’s pre-accident condition be factored into the analysis, if at all? Dr. Delaney felt that the 40% WPI, when superimposed on the plaintiff’s pre-existing health problems, resulted in a final WPI of 60 percent (which would meet the “catastrophic” requirement of 55 percent). Dr. Ameis’ conclusion was that 40% represented the overall WPI.
Justice Spiegel accepted Dr. Delaney’s opinion. He said that he was “bolstered” in doing so by the fact that another defence IME, this one by neurologist Dr. Henry Berry, had also concluded that the plaintiff was catastrophically injured. At trial, the defence challenged the opinion of its own expert, on the basis that Dr. Berry had not applied the AMA Guides and so, “must have misapprehended the opinion that was being sought of him”. The court disagreed.
So, the finding was made, that the plaintiff had suffered a catastrophic impairment, considering only his physical injuries.
Adding Psychological and Physical Findings
The judge then considered whether it was permissible to take into account, for purposes of the “catastrophic” analysis, the psychological consequences of the 1999 MVA. The AMA Guides do not contain quantitative measurements of psychological injury that would allow such injury to be factored into the 55% “whole person impairment”. The plaintiff argued that psychological injury could nevertheless be taken into account in making the assessment; the defence took the opposite position.
Again, the court agreed with the plaintiff. Justice Spiegel looked at the wording of the legislation and felt that he was justified in giving it a liberal interpretation. He ruled that even if he had been wrong in concluding that the plaintiff’s physical injuries alone had rendered him catastrophically injured, the combination of the psychological and physical injuries did meet the standard for “catastrophic”. (Justice Spiegel found that the psychological injuries had produced an impairment of 25 percent which, when factored with the 40% WPI from physical injuries, resulted in an overall WPI of 55 percent.)
Cross-examination on Prior Judicial Comments
There was another interesting issue dealt with in this case. The plaintiff’s solicitor had sought to cross-examine Dr. Ameis with respect to negative comments that had been made about him by judges and FSCO arbitrators in other cases in which he had testified. Justice Spiegel ruled that, while such cross-examination might be permissible in some circumstances, no foundation existed for it here. As a result, the evidence was ruled to be inadmissible.
A somewhat worrisome part of this decision was the court’s acceptance of evidence from the plaintiff’s economist, to justify a departure from the discount rate prescribed by Rule 53.09. The court applied a lower discount rate, which would increase the present value figures for future losses, such as cost of care. The departure was based on the evidence of the plaintiff’s economist, who predicted that inflation would have a greater effect on health care costs in the future than had been provided for in Rule 53.09.
Some of you might recall that this sort of evidence became rather commonplace (on both sides) in the 1980’s. Its use was discouraged, to some extent, by cases such as the Court of Appeal’s 1989 decision in Giannnone v. Weinberg, although courts have always had the discretion to depart from the statutory rate, if the evidence supported it. It may be that we are going to see more use of economic experts on this issue in the future.