[197] Dr. Delaney assigned an overall increase in the WPI percentage. Dr. Ameis criticized Dr. Delaney’s methodology on the grounds that she did not provide adequate reasons explaining her increase in Mr. Desbiens’ WPI percentage. Thus, he contended, it lacked the “defensibility” of his approach. Reference was made to the following statement at page 64 of the Guides “If the examiner determines that the estimate for the anatomic impairment does not sufficiently reflect the severity of the patient’s condition, the examiner may increase the impairment percent, explaining the reason for the increase in writing.”
[198] However both experts agreed that once they reached the 55% WPI mark they did not generally spend as much time and detail assessing further impairments. Dr. Ameis was of the view that the further impairments should be listed but not necessarily quantified to the same extent. In considering Dr. Ameis’ criticism of Dr. Delaney’s approach it is important to remember that Dr. Delaney, in all of her reports, had found the Mr. Desbiens had at least a 55% WPI without taking into account his paraplegia. Furthermore, I find that Dr. Delaney did explain the reason for the increase in writing. On page 27 of her report dated March 25, 2001 she states, “If we keep in mind that he was already paraplegic and we add these new impairments, which are responsible for his alteration in function, we can clearly see that he has sustained a catastrophic impairment in the context of his current state and pre-existing medical condition.” As noted, Dr. Delaney elaborated on these reasons in her testimony.
[202] I do not accept the approaches used by Dr. Ameis to capture the impact of Mr. Desbiens‘ impairment on his pre-existing paraplegia. With respect to the analogous loss of function approach that Dr. Ameis adopted at trial it will be necessary to refer in some detail to Dr. Ameis report of November 1, 2001 (2001 report) and Dr. Delaney’s report of March 25, 2001 and his testimony at trial to explain how I arrived at this conclusion.
[203] At page 12 of his 2001 report Dr. Ameis deals with Dr. Delaney’s impairment ratings of Mr. Desbiens right lower extremity as contained in her report of March 25, 2001. He rejects Dr. Delaney’s impairment scores of 30% for the right hip and 14% for the right knee on the grounds that these impairments were not caused by the car accident but rather arose from the paraplegia. He then states, “Therefore, I would not accept that the 33% score suggested by Dr. Delaney is in any way applicable.” It is important to note that Dr. Delaney at page 26 of her report had concluded that the combination of the right knee and right hip impairments resulted in a 40% WPI of the right lower extremity. Without considering the right lower extremity, Dr. Delaney concluded that the combined whole person impairment would be 33%. Dr. Delaney testified that she believed that Dr. Ameis’ reference to “the 33% score” was an error as it was clear that he was referring to her impairment rating of the right lower extremity of 40% WPI. I must say that my impression on reading Dr. Ameis 2001 report was the same as that of Dr. Delaney.
[204] Following the above quoted statement Dr. Ameis continues:
Final Whole Person Impairment Scoring
Even without entering into a discussion of the applicability of lower extremity scoring of 33%, it should be appreciated that were we to combine 33% with 5% for the neck and 7% for the right upper extremity and 0% for left upper extremity, the AMA Guides table would yield a score of just 41% (which rounds to 40%). This falls well below the 55% threshold of the definition.
[205] In my view this clearly confirms that Dr. Ameis’ reference to the 33% score refers to Dr. Delaney’s scoring of the right lower extremity impairment. I interpret the above quote as meaning that Dr. Ameis did not accept that there was any causal connection between the right lower extremity impairment and the car accident. However, even if there were no problem with causation, Dr. Delaney’s impairment rating for the lower extremity, when combined with Dr. Ameis’ ratings for the neck (5%) and right upper extremity (7%) still do not achieve the WPI of 55% required by Clause (f).
[206] When Dr. Ameis was cross examined on this portion of his 2001 report I expected that he would simply say that he had erroneously written 33% instead of 40%. Had he done so, this would not have altered his conclusion that the final WPI fell short of the 55% requirement. However, in his cross-examination Dr. Ameis instead insisted that “the 33% came from an out-of-the-box thought that if Mr. Desbiens’ major problem was a loss of ability to transfer then maybe what you should do is try and treat it like someone else who has an inebriated (sic) transfer as for example an individual who has a major abdominal wound and loses their abdominal musculature.” He then went on to explain how he arrived at the 33% (which has already been described above) and referred to a worksheet which broke the 33% down into its component parts, which he testified was prepared at the time of his report. Dr. Ameis testified that the 33% was intended to capture all of the impairments other than the shoulder and neck. When asked why none of this was mentioned in the report Dr. Ameis testified “I did not explain it in the report and that’s my fault…it was not well crafted I did not explain myself.”
[207] The plaintiff submitted that Dr. Ameis’ explanation of how he arrived at the overall WPI of 40% was essentially an ex post facto modification of his initial opinion in order to create a more reasonable position for the defence. They submit that it is clear from Dr. Ameis’ 2001 report that he did not accept that there was any impairment caused to the lower extremity by the car accident. The only impairments that Dr. Ameis found to be attributable to the car accident were the 5% rating for the neck and the 7% for the right upper extremity which results in an overall WPI of 12%. Counsel for the plaintiffs point out that this is totally inconsistent with Dr. Ameis’ evidence at trial to the effect that had he assessed Mr. Desbiens at a CAT DAC he would have found him to have sustained an overall WPI of about 40%. It seems to me that there is considerable merit to this submission. However, regardless of his motivation I find that his explanation flies in the face of the clear meaning of his report. Dr. Ameis has vast experience in preparing medical legal reports. He acknowledged in cross-examination that great reliance is placed on such reports. I cannot believe that he would have stated a conclusion based on such a complicated and “out of the box” methodology without referring to it in his report. If in fact he did do so, his criticism of Dr Delaney’s approach on the grounds that it lacked defensibility, is a case of “the pot calling the kettle black”.
[208] I also agree with Dr. Delaney that Dr. Ameis’ choice of the hernia to the abdominal wall as causing an analogous loss of function is rather far-fetched.
[209] With respect to Dr. Ameis’ activities of daily living equivalent approach I agree with Dr. Delaney that the 35% WPI arrived at by Dr. Ameis does not take into account the impact of this impairment superimposed on Mr. Desbiens’ pre-existing paraplegia.
Conclusion
[210] On this issue I prefer Dr. Delaney’s opinion to that of Dr. Ameis. I find that when Mr. Desbiens’ impairments are considered in the context of his pre-existing paraplegia that he sustained a catastrophic impairment in the car accident as defined in clause (f) of the Regulation.
Cross-examination of Dr. Ameis On Prior Negative Judicial Comments
[265] In cross examination, plaintiffs’ counsel sought to impeach Dr. Ameis’ credibility by referring to a number of cases before this court and the Financial Services Commission of Ontario (FSCO) in which negative comments had been made by the judge or arbitrator concerning Dr. Ameis lack of objectivity and impartiality in his role as an expert.
[266] Defendants’ counsel objected to this line of questioning on the grounds that the credibility of Dr. Ameis should be determined based on the testimony and demeanor of Dr. Ameis in the case before the court and that the comments made by a judicial officer in another case concerning the nature and quality of Dr. Ameis’ evidence is totally irrelevant.
[267] I indicated to counsel at the time that in the interest of expediency I would permit cross-examination on this issue as well as re-examination and that I would rule on the question of admissibility in my reasons for judgment.
[268] While both counsel acknowledged that they knew of cases in which this line of questioning did take place they were unable to provide me with any decision in which the issue was the subject of judicial analysis. However, while the matter was under reserve I came across two cases that, in my view, lead to the conclusion that this line of cross examination is not permissible.
[269] In R v. Ghorvei[39] the appellant sought to introduce as fresh evidence on appeal, a transcript of a previous trial wherein the main police witness inGhorvei had been the subject of the following comment by the trial judge, “I find that this officer is a compulsive liar. I do not believe his evidence at all.”[40] The Court in Ghorvei, after setting out the well-known criteria for the admission of fresh evidence, made the following statement:
The determining issue, therefore, is whether the evidence could reasonably be expected to have affected the result at trial. Of course, it could only have had any effect on the result if it could have been used at trial to impeach Constable Nielsen’s credibility.[41]
[270] In ruling against allowing this line of cross-examination the court stated:
In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case.[42]
[271] Ghorvei was followed by R. v. Karaibrahimovic.[43] In this case the Crown, at trial, cross-examined the accused’s expert witness on the basis that the expert’s testimony was rejected in four other cases. Furthermore Crown counsel specifically cross-examined the expert by putting to him the conclusions of other trial judges apparently critical of his evidence.[44]
[272] Based on the inclusion of this cross-examination inter alia the Court allowed the appeal and ordered a new trial. In doing so the Court specifically stated, “there is no legitimate use to which the trier of fact in this case could have put the evidence arising out of [the expert’s] cross-examination about four other cases in which it was asserted that his opinion was rejected.”[45]
[273] In my view, I am bound by Ghorvei and influenced by Karaibrahimovic to hold that the fact that Dr. Ameis has been the subject of negative judicial comment respecting his conduct as an expert witness in other cases is not the proper subject of cross examination in this case.
[274] I do not wish to be understood to say that this line of questioning is impermissible under any circumstances. If a satisfactory evidentiary basis is laid it may become relevant. Plaintiffs’ counsel submitted that an adequate evidentiary foundation has been established. He noted that Dr. Ameis, in his examination in chief during the qualification process, stated that he testified in court before. On cross-examination Dr. Ameis agreed that he may have testified in court on hundreds of occasion prior to this trial and had given expert evidence in arbitrations on perhaps 50 or 60 occasions. He agreed on cross-examination that an expert medical witness who is not testifying with respect to his or her own patient ought not to act as an advocate and should be as objective or impartial as possible. When asked whether he had testified as an expert on previous occasions he had done so objectively and impartially and not as an advocate, his answer quite fairly was “I’ve tried”. In my opinion this is not a sufficient evidentiary basis to support the introduction of the line of cross-examination sought by the plaintiffs.