Financial Services Commission of Ontario

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 181

FSCO A13-004919

BETWEEN:

JONATHAN LEDUC-MOREAU

Applicant

and

ECHELON GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Susan Sapin

Heard: May 12, 14, 15 & 16, June 16 & 17, 2014 September 28, 29, 30 & October 1, 5, 6, 7 & 8, 2015

Written submissions on expenses received June 24, 2016

Appearances: Andrew Kerr for Mr. Leduc-Moreau Jamie Pollack and Matthew J Sutton for Echelon General Insurance Company

Issues:

The Applicant, Jonathan Leduc-Moreau, nineteen years old at the time, was injured in a high speed roll-over on highway 401 north of Orillia in the early hours of March 8, 2009. He and the driver of the vehicle were on their way home after an evening drinking alcohol and smoking marijuana at a rock concert at Casino Rama. Both were intoxicated when they got into the car. Mr. Leduc-Moreau recalled being alarmed by his friend’s driving and removing his seat belt so that he could get out of the car just before the crash. When the vehicle hit the ditch, his head hit the dashboard, and the next thing he remembered was being found by a passerby about 70 feet from the vehicle. He did not know whether he had been ejected or wandered from it. He was taken to hospital by ambulance with a large deep cut and bruise on the left side of his scalp and fractures to the C6 and C7 vertebrae in his neck, surgically repaired the next day via discectomy and fusion using a bone graft from his hip. He suffered a mild traumatic brain injury (“TBI”), right sided vocal cord paralysis – most likely a result of the surgery - and a damaged thoracic nerve which caused weakness and winging of his right shoulder blade.

Mr. Leduc-Moreau applied for and received statutory accident benefits from Echelon General Insurance Company (“Echelon”), payable under the Schedule.¹

In July 2010, Mr. Leduc-Moreau applied to Echelon for a determination that he met the criteria for catastrophic impairment as a result of his accident-related injuries. His major complaints are of constant chronic pain in his lower back, shoulders, neck and hip that increase in severity with activity; sleep disturbance; difficulties with concentration and memory; depression and anxiety; episodes of daily vomiting and an inability to return to employment.

Under the Schedule, a finding of catastrophic impairment entitles an insured person to apply for significantly enhanced accident benefits such as extended medical and rehabilitation benefits, as well as payments for attendant care and housekeeping and home maintenance expenses beyond two years after the accident.

In December 2011 Echelon conducted a multidisciplinary insurer’s assessment (“CAT IE”) which concluded that Mr. Leduc-Moreau’s accident-related impairments were not catastrophic as defined by the Schedule.

Mr. Leduc-Moreau disputes this finding. The parties were unable to resolve their disputes through mediation, and Mr. Leduc-Moreau applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The preliminary issue in this hearing is:

1. Did Mr. Leduc-Moreau suffer a catastrophic impairment as defined in ss. 2(1)(1.2)(f) or (g) of the Schedule?

2. Is either party entitled to its expenses of this preliminary issue hearing?

Result:

1. Mr. Leduc-Moreau did not suffer a catastrophic impairment under the Schedule.

2. Echelon is entitled to its expenses in the amount of $49,000.00, inclusive of HST.

Overview:

Mr. Leduc-Moreau claims that his accident injuries and resulting psychological difficulties including cannabis dependence qualify as catastrophic impairments under two of seven possible categories under the Schedule.

The first category includes a combination of physical and mental and behavioural impairments that together result in a 55 per cent impairment of the whole person (“WPI”). Under the second category, a person’s impairments are considered to be catastrophic if they suffer a class 4 (marked impairment) or a class 5 (extreme impairment) in one of four functional domains, due to a mental or behavioural disorder resulting from the accident.²

The Schedule requires that the degree of impairment be measured and rated by qualified health professionals according to criteria set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition, 1993. Two years must elapse since the accident before the impairments can be rated, to allow for the person`s condition to have stabilized sufficiently to be able to determine if the level of impairment will likely continue into the future.³

With respect to the first category, the parties’ medical assessors arrived at similar WPI ratings for Mr. Leduc-Moreau’s physical injuries: 32% compared to 30% by Echelon, both of which fall short of the 55% catastrophic threshold. With respect to the second category, mental or behavioural disorder, Mr. Leduc-Moreau’s psychologist, Dr. Brian Levitt found him to be moderately impaired in three of the four functional domains outlined in the Guides, and to have a marked Class 4 impairment in the fourth domain, “adaptation.” This rating, on its own, meets the criteria for catastrophic impairment under the second category. In addition, converted to a numerical value of 40% according to a method used in the Guides and added to the 32% WPI for physical injuries, it yields a combined WPI of 59%.⁴ As this number exceeds the minimum 55% threshold for a catastrophic impairment, Mr. Leduc-Moreau would also meet the threshold for a combined WPI under s. 2(2.1)(f) according to his own assessors.

According to Echelon’s assessors, Mr. Leduc-Moreau’s impairments are not catastrophic even if his mental or behavioural disorder and physical injuries are combined. Dr. Zohar Waisman, Echelon’s psychiatrist, assessed Mr. Leduc-Moreau’s mental and behavioural impairments as only moderate, or Class 3, across all four categories of function. This translates to a percentage WPI of 29% which, when combined with Echelon’s 30% WPI for physical injuries results in a WPI of 50%. This does not meet the threshold to qualify as a catastrophic impairment. Even if one were to accept the higher physical WPI of 32% assessed by Mr. Leduc-Moreau’s experts (which I do not, for reasons explained later on), and combine it with Echelon’s moderate behavioural rating of 29%, the total combined WPI would still only be 52%. As close as that score is to the 55% threshold, it still falls short. ⁵

In effect, then, this case turns solely on whether Mr. Leduc-Moreau can prove his claim, on a balance of probabilities, that he suffered a marked mental behavioural impairment in the functional category referred to as “adaptation” as a result of the accident. For the reasons set out below, I find he has not met his burden of proof.

How Mental and Behavioural Impairments are Rated:

Before addressing the evidence, it is helpful to understand how the Guides rate behavioural and mental impairments in four overlapping categories of function. These categories, or domains, are: (i) activities of daily living (self-care, hygiene, communication, ambulation, travel, sexual function, sleep and social and recreational activities); (ii) social functioning; (iii) concentration, persistence and pace (the ability to sustain focused attention long enough to complete work or household tasks); and (iv) deterioration or decompensation in work or work-like settings, or “adaptation,” the functional category at issue here.

The table below illustrates the five possible levels of impairment on a continuum between Class 1, no impairment, and Class 5, extreme impairment for the four aspects of functioning:

TABLE. Classification of Impairments Due to Mental and Behavioral Disorders⁶

Area or aspect of functioning	Class 1: No impairment	Class 2: Mild impairment	Class 3: Moderate impairment	Class 4: Marked impairment	Class 5: Extreme impairment
Activities of daily living Social functioning Concentration Adaption	No impairment is noted	Impairment levels are compatible with most useful functioning	Impairment levels are compatible with some, but not all, useful functioning	Impairment levels significantly impede useful functioning	Impairment levels preclude useful functioning

For his impairment levels to be considered marked in the area of adaptation, and therefore catastrophic under s. 2(1.2)(g) of the Schedule, Mr. Leduc-Moreau must show that his impairment levels significantly impede useful functioning in that domain.

The Guides describe each of the four domains of function and give examples of how useful function may be affected by a person’s impairments. The description for the adaptation domain reads as follows:

Deterioration or decompensation in work or worklike settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation of signs and symptoms of a mental disorder; that is, decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stresses common to the work environment include attendance, making decisions, scheduling, completing tasks, and interacting with supervisors and peers . . .⁷

The concern is not just whether a person can hold down a job. Employability is a key factor, but not the only one. In assessing a person’s ability to adapt in a work or work-like setting, the Guides look at four key capacities: understanding and memory, sustained concentration and persistence, social interaction, and the ability to respond appropriately to changes in the work setting. It includes awareness of potential hazards and the ability to take precautions, to use public transportation and travel to and within unfamiliar places; to set realistic goals; and to make plans independently of others. . . . ⁸

Mr. Leduc-Moreau’s accident-related impairment levels do not significantly impede useful functioning:

There is no dispute that Mr. Leduc-Moreau suffered emotional distress in the form of depression and anxiety after the accident, that he complained of pain and difficulties with memory and concentration, and that he uses cannabis to function. At issue is the degree to which these impairments have affected his behaviour and limited his useful functioning after the accident.

Evidence of Dr. Brian Levitt

Dr. Brian Levitt was an important witness for Mr. Leduc-Moreau. A clinical and rehabilitation psychologist, he assessed Mr. Leduc-Moreau’s mental and behavioural impairments in August 2012, almost two and a half years after the accident, and formulated the following diagnoses:

• Posttraumatic Stress Disorder, chronic;

• Cannabis Dependence;

• Polysubstance Dependence or Abuse, in remission, (based on Mr. Leduc-Moreau’s admission that he used hard drugs in the two years after the accident but quit when his girlfriend became pregnant; as well as the reports of Dr. Kiss (July 30, 2010) and Dr. van Reekum (July 18, 2010);⁹ a copy of Dr Kiss not provided but referred to in report of Levitt

• Adjustment Disorder with Depressed Mood;

• Cognitive Disorder NOS (“not otherwise specified;” in other words, possibly due to a number of causes);

Despite Mr. Leduc-Moreau’s complaints of chronic daily pain and “significant sense of loss because of his physical impairments and inability to do what he loves or to pick up his son safely without fear of dropping him” and the 2010 opinion of neuropsychiatrist Dr. van Reekum that Mr. Leduc-Moreau was at risk of developing a pain disorder, Dr. Levitt specifically did not come to that conclusion. Instead, his opinion that Mr. Leduc-Moreau had a marked impairment in the domain of adaptation was based primarily on the fact that he was dependent on cannabis:

Adaptation: Mr. Leduc-Moreau developed a significant dependence on multiple

substances after his MVA, but now appears only to be dependent on cannabis.

He uses marijuana to cope with pain and mood, and without it he struggles to cope with pain and is agitated. He also reported being easily overwhelmed in stores or stimulus rich settings, including social situations and groups. He often withdraws from conversations feeling overwhelmed and unable to keep track. His life is largely spent at home with very simple activity in a simple environment, frequently smoking marijuana even to cope in this environment. His current psychological state can be regarded as deteriorated, and he deteriorates further under ordinary stressors: withdrawing, isolating, and leaving tasks incomplete.¹⁰

In his testimony, Dr. Levitt stated that Mr. Leduc-Moreau needed to be “high” to adapt: “If he is not high he’s not functioning, he’s not adapting, he’s not coping, he deteriorates further. If he’s functioning, it’s because he is on a drug and impaired.” As to work, he felt Mr. Leduc-Moreau would have to be high to work, and this was not sustainable. He also agreed with the opinion of Echelon’s occupational therapy assessor that barriers to a successful return to work might include Mr. Leduc-Moreau’s anger-management issues when facing frustrating situations, his cognitive difficulties — particularly with memory and information processing — and his communication difficulties (due to his right-sided vocal cord paralysis).¹¹ His conclusion was that Mr. Leduc-Moreau was unemployable from a psychological and neuropsychological perspective, and disabled from performing employment in accordance with his education, experience and training.

Dr. Levitt’s opinion is undermined by other evidence presented at the hearing, which indicates Mr. Leduc-Moreau suffered from emotional difficulties, including lability and anger-management; had cognitive impairments; and used marijuana daily before the accident. Moreover, there was evidence that his accident-related impairment levels are compatible with some, but not all, useful functioning, which would place him at the moderate level in the adaptation category.

First, Mr. Leduc-Moreau was able to work in a warehouse in New Brunswick for six months from November 2013 to May 2014. Second, despite his complaints of pain and cognitive difficulties, he has engaged in activities since the accident that demonstrate an ability to function usefully in a wide range of activities similar to those he engaged in before the accident. His impairments have not significantly impeded his ability to function in and enjoy family life, pursue his interest in buying, fixing and re-selling used cars, or spend time outdoors.

Finally, the evidence shows that Mr. Leduc-Moreau was not always accurate or consistent in what he told assessors, and they did not always have relevant historical or collateral information, which undermined their opinions.

Pre-Accident Life and Work:

Mr. Leduc-Moreau grew up in a rural in the Port Severn area of Ontario, third in a family of seven children. His mother, Deborah Moreau, left the family when he was sixteen and moved to New Brunswick, apparently because of her husband’s drug use.¹² She took the four youngest with her. Mr. Leduc-Moreau stayed with his father. Although he reported to Dr. van Reekum and Dr. Levitt that he had a happy childhood, they noted he was subjected to a violent home environment with parents who abused drugs.¹³

Regarding his ability to function in work-like settings, Mr. Leduc-Moreau dropped out of school in Grade 10 when he was sixteen years old, and from an early age worked with his father cutting down trees and chopping the wood, selling it for cash as firewood. He testified he wanted to start his own life and his own wood business. In particular, he wanted to work on cars. He would buy old ones, obtain parts at the scrap yard or from the internet, fix up the vehicles, and sell them for cash. He had no plans to go to school or pursue an apprenticeship in auto mechanics, but wanted to open a “side garage” together with his father, who also had no formal training in auto mechanics, as a way of making a living.

According to Deborah Moreau, who testified at the hearing, he was the “outdoor kid,” always busy with dirt bikes and three-wheelers (“trikes”), and a “grease-monkey” who could fix anything. Mr. Leduc-Moreau testified that his plans with his life was to have a project or “show” car and go to car shows. He testified that he was never without “side jobs” such as cottage care (looking after cottages for their owners), which he did with his father; mowing lawns or shovelling snow; and construction work with his uncle, mostly seasonal work paid in cash. He also helped his father tend his marijuana plots. (As will be discussed later, drugs have been a big part of Mr. Leduc-Moreau’s life before and after the accident.) He did not keep any receipts or financial records for any of these jobs, nor did he file income tax returns.

Mr. Leduc-Moreau’s first “real job” was as a “gas boy” and maintenance person at Severn Boat Haven, a marina, for five months from April to August 2008, removing boats from storage in the spring, buffing them; shrink-wrapping them in the fall; repairing motors. He testified that the job was seasonal, he enjoyed this work and would have returned to this job the following spring had it not been for the March 2009 accident. He took time off from that job in August when he needed to sort himself out after his father threw him out of the house. Mr. Leduc-Moreau stated he was happiest when he was working and did not like not working. His recreational hobbies were very much the active outdoor kind: dirt-biking, fishing, boating, snow-boarding and snow-mobiling.

I find Mr. Leduc-Moreau’s pre-accident employment choices were influenced not only by his preferences, but likely also relate to his difficulties in school. The limited school records available indicate he had serious behavioural problems in elementary school and his academic performance was below age expectations, particularly in language arts, where considerable accommodation was required. Dr. Levitt thought it possible that Mr. Leduc-Moreau had a long-standing learning disability;¹⁴ Mr. Leduc-Moreau’s sister Chantal, who grew up with him and was able to describe his pre-and post-accident behaviour in detail, was convinced of it, and that it went undiagnosed. I find Mr. Leduc-Moreau suffered from cognitive difficulties that pre-date the accident.

I find that, for Mr. Leduc-Moreau, “work-like” settings have always consisted of casual, largely unsupervised, unskilled and unscheduled outdoor environments where he could work at his own pace doing seasonal manual labour and handy-man type jobs that he enjoyed for cash, and that did not involve paperwork or record-keeping. There is no evidence that he aspired to any other kind of occupational environment prior to the accident. I find his stated intention to open a garage with his father without any formal schooling or apprenticeship indicates he did not intend to become a licensed mechanic in a “formal” garage setting.

As noted above, Dr. Levitt based his conclusion that Mr. Leduc-Moreau was markedly impaired in the adaptation domain as a result of the accident primarily on his opinion that he had become dependent on cannabis to deal with pain and to adapt to stressful situations, and this made him unemployable. Dr. Levitt believed that although Mr. Leduc-Moreau used cannabis before the accident, “he didn’t need it to function prior to the accident as he does now.”

That opinion is not borne out by the evidence presented at the hearing, and when confronted with that evidence, Dr. Levitt candidly admitted that it would have changed his opinion.

In particular, Dr. Levitt did not have any specific information about Mr. Leduc-Moreau’s cannabis use before the accident, which Mr. Leduc-Moreau himself stated was 3 – 4 grams per day. Chantal Moreau testified that before the accident, her brother was very much against hard drugs but would consume “probably quite a bit of bongs a day.”¹⁵ Mrs. Moreau acknowledged that she had been called to the school because her son was smoking marijuana on school property in Grade 8. This contradicts his statement to Dr. Levitt that he smoked marijuana only since he was fifteen years old.

I find Mr. Leduc-Moreau downplayed his use of marijuana pre-accident, and that he likely used it more regularly than he would admit. He grew up with it – he and his father grew the plants on their property. He claimed he used it only when he would get together with his friends socially and could not consume it regularly during the day because he was working on cars most of the time and his hands would be too greasy. This contradicts his evidence that he consumed 3 - 4 grams per day and I did not find it to be believable.

Post Accident Life and Work

I find there is little evidence that Mr. Leduc-Moreau’s life after the accident was much different than before regarding the adaptation category, or that his accident-related mental and behavioural impairments were other than moderate. I find his impairments have not much modified his marijuana use or changed the impact it has had on his life.

Ability to Work:

After the accident, Mr. Leduc-Moreau was, understandably, not able to work for quite some time while his neck and shoulder injuries healed. His living arrangements were unsettled at best, which interrupted his treatment efforts, although he did attend some physiotherapy and speech therapy in New Brunswick.

After the accident, he lived for a time with his father in Port Severn, spent two months with his sister, Chantal, in Penetanguishene, and then went to live with his mother and his younger siblings in New Brunswick, sleeping on the couch, in order to have more consistent treatment and rehabilitation. He developed a substance addiction and suffered from withdrawal symptoms which included vomiting, first with painkillers, then with hard drugs which he consumed with his first girlfriend, Trina. He moved in with Trina in September 2009, and stated that they spent $5,000 of their rent money on drugs. He stated he used hard drugs, alcohol and marijuana for two years, using money Echelon paid him for attendant care.

Mr. Leduc-Moreau’s subjective reports about his pain and physical abilities, or about his relationship with drugs, are not always consistent with objective evidence. He claims, for example, to have needed, and worn, a neck brace for two years after the accident, but a December 10, 2009 report from a Dr. Najmedden Attabibi at Horizon Health Network, New Brunswick¹⁶ nine months after the accident noted that he had no neck pain or arm pain, and that “In terms of physiotherapy and work, there is no restriction on his upper extremities that can be done [sic]. I don’t think he needs physiotherapy to his neck since his neck mobility has plateaued and is reasonable.” He also spent a week in hospital in Moncton in April 2010 after he fell down a flight of stairs due to an alleged blackout. He stated he reinjured his shoulders at that time.

In May 2010 Mr. Leduc-Moreau was back in Ontario; records of a visit to the emergency department of the Huronia District Hospital May 10, 2010 indicate he developed a back spasm gardening with his father and asked for narcotics. ¹⁷ Concern about his drug use led to an assessment and treatment of addiction and cognitive issues by a team of health professionals at the Neurologic Rehabilitation Institute of Ontario (NRIO) in Etobicoke in June, 2010. He denied alcohol and cocaine abuse to the NRIO team, claiming these caused him to black out and not remember things.¹⁸ This contradicts his admission that he used hard drugs, during two years after the accident.

In an Examination Under Oath (“EUO”) for Echelon around the same time on July 22, 2010, Mr. Leduc-Moreau stated that if it were not for the pain and dislocations of his shoulders, and despite his memory problems, he would be able to work and “would definitely be back to work already.” He stated he could still work on cars, with some limitations, but could not pull a rake across a lawn without being sore.¹⁹ At that time, Dr. van Reekum advised that Mr. Leduc-Moreau needed to decide where he was going to live in order to ensure continuity of treatment, advice that was not apparently heeded, as Mr. Leduc-Moreau appears to have continued to move back and forth between Ontario and New Brunswick.

At the start of the hearing on May 12, 2014, Mr. Kerr advised that since November 8, 2013 Mr. Leduc-Moreau had been working as an order picker/unloader at Eclipse Advantage Canada, a warehouse in New Brunswick that unloads food products from tractor trailers and sorts them. Echelon asserted this was longer than any job he had held before the accident. It is Mr. Leduc Moreau’s position, however, that he was actually unable to do the job during and beyond six months because of shoulder pain and dislocations and bouts of vomiting at work, all as a result of the accident, and this indicates he has a marked impairment in adaptation.

Mr. Leduc-Moreau gave conflicting reports about why he left that job. He testified that he was “laid off.” He also testified that he started getting sore when he got home from work, would have difficulty waking up in the morning (his shifts were from 6:00 a.m. to 3:00 or 4:00 p.m.), and would vomit because of the pain, after about two months on the job, because he was overworking himself. He could do the lighter aspects of the job, but not the heavier lifting, such as 50 kilogram bags of flour. He also testified, however, that he was permitted to do the lighter tasks at the warehouse. No information to corroborate his claims that the job required daily heavy lifting was provided.

Employment records from Eclipse indicate he received two warnings for absenteeism. The second, dated April 22, 2014, advised that he did not show up for a scheduled shift, that he was to be on time for all scheduled shifts, and that any absences required a doctor’s note to be excused. It warned that further infractions would lead to termination.²⁰

Kylie Kierstead, his supervisor and friend and the person who hired him for the job, testified by videoconference from New Brunswick. He stated Mr. Leduc-Moreau complained of soreness in his upper back and he could see for himself that Mr. Leduc-Moreau was struggling, that he threw up in the garbage cans at work every second or third day or so, and that he missed too much time from work. When asked directly why Mr. Leduc-Moreau left the job, Mr. Kierstead first said it was because he had to move back to Toronto for his court case and would need to take a lot of time off for it. He then said that he couldn’t handle the job anymore, and that he “gave up.” He testified that if Mr. Leduc-Moreau had not left on his own, the company “probably” would have had to let him go eventually. When asked about Mr. Leduc-Moreau’s use of marijuana, Mr. Kierstead stated couldn’t be certain, he’d “probably heard of him doing it,” and it was not something he actually witnessed.

I accept the evidence of Mr. Leduc-Moreau and of Mr. Kierstead that Mr. Leduc-Moreau was likely unable, at that time, to handle the heavier lifting involved at the warehouse, or the full time work week. As early as July 2010, a NRIO physiotherapist noted that Mr. Leduc-Moreau was “not conditioned.”²¹ As his physiotherapy was limited; there is no evidence he ever participated in a work-hardening programme; and he admitted he used marijuana and hard drugs for two years after the accident, it makes sense that he would not have been physically or mentally ready to work consistently at a full-time job that involved heavy manual labour and regular shifts.

But, as noted above, the evidence indicates he has never actually held such a job, or ever worked in a similar occupational environment or work-like setting for any extended period of time. Furthermore, the evidence indicates he has a number of skills important to the type of work he liked and was able to do pre-accident. For example, he testified on cross-examination that: “I can drive backwards. I can drive a 26-foot trailer with a car trailer on the back and I won`t have one hint of a problem. I would drive through town with a bus.” In fact Mr. Leduc-Moreau drove from New Brunswick to Toronto just before the start of the hearing, and also rented a U-haul to move furniture in New Brunswick. Surveillance conducted in 2010 and 2014 confirms he has no difficulty whatsoever driving, and that he can mow a lawn using both a lawnmower and a riding lawn mower. It also showed him loading furniture onto the back of a pick-up truck.

I find Mr. Leduc-Moreau’s inability to stick it out at the warehouse does not suggest he is incapable of work similar to what he did before the accident, in similar work-like settings. I find he is capable of the latter. Consequently, I find his impairment levels are compatible with some, but not all, useful functioning in work-like settings and they correspond most closely to the moderate impairment level.

Ability to Engage in Recreational Activities is not Significantly Impeded:

I find this same moderate level of impairment applies to Mr. Leduc-Moreau’s passion for cars and his interest in outdoor activities.

With respect to fixing up and re-selling cars and owning a show car, Mr. Leduc-Moreau testified that he could not realize his dream of owning his own garage because he “needed” someone, and since the accident, he lacked confidence in himself when working on vehicles, could not keep anything organized, and could not handle paperwork of any kind. He also stated he could not do the heavy physical work sometimes involved, such as loosening lug nuts or bolts, or haul himself under, and out from under vehicles because his shoulders were painful and “popped out.”

However, as discussed above, the plan before the accident was not to open up a garage by himself in any event, but to work alongside his father in a “side” garage next to the house.

Contrary to his claim that he could no longer work on vehicles because he was limited physically and by depression in what he could do, Mr. Leduc-Moreau testified that he bought, fixed, and sold seven vehicles in the summer of 2013, and that he had a show car he had fixed up and shown on at least four occasions.²² I note that showing the car would involve towing it on a trailer to car shows. I find Mr. Leduc-Moreau’s mental and behavioural impairments do not significantly impede him pursuing this hobby/vocation, and are compatible with some, but not all, useful function regarding these activities.

Regarding outdoor activities, Mr. Leduc Moreau testified about his sadness at not being able to ride and “jump” dirt bikes, fish for 30-pound salmon or operate large motor boats (because the motors were too heavy to lift). He stated all these activities would cause his shoulders to pop out. However, there was no evidence to suggest his mental or behavioural impairments prevented these activities, or that his physical impairments alone prevented these activities on a more modest scale, or that he was prevented from enjoying the outdoors. Surveillance and Facebook pages showed him active in outings to a park in Toronto where he chased geese while crouching low, and photographed them as they flew off, and on a day hike to Gordon Falls in New Brunswick where he jumped into a pool. I note that when cross-examined about these activities, Mr. Leduc-Moreau avoided answering direct questions, and reverted to describing what people would usually do at Gordon Falls, not what he actually did there on that visit. I find he is clearly able to engage in more activities than he claims, and is reluctant to acknowledge this. I find his level of mental impairment to be compatible with some, but not all useful function in these recreational activities, and therefore moderate.

Overall, I did not find Mr. Leduc-Moreau to be a credible witness. One particular example that stood out related to his father. He testified that his father was “on disability” since the age of 18 or 19 because he could not work, and that because he had two damaged shoulders that, even after surgery, caused him pain and continued to pop out. In the same breath, without a trace of irony or even the appreciation of it, he stated his father earned income from cutting down trees, hauling, splitting and selling the wood, and that he built houses for his family and put a second storey on the family home. ²³ I find Mr. Leduc-Moreau’s inability to appreciate the contradictory nature, not to mention deceit involved in claiming a benefit on the basis of an inability to work, when one can in fact can work, influenced how he chose to represent his own situation to assessors. I agree with Echelon’s submission, that Mr. Leduc-Moreau was prone to overstating his impairments, and could not be taken at face value.

Mr. Leduc-Moreau’s Mental and Behavioural Issues, Including Anger-Management, Pre-Date the Accident:

Mr. Leduc-Moreau’s school and hospital records as well as the testimony of his mother and sister indicate his mental, behavioural and mood issues date from well before the accident.

A Special Education Report dated February 4, 2000 when Mr. Leduc-Moreau was eleven years old²⁴ was considered significant by both Drs. van Reekum and Levitt. That report indicated Mr. Leduc-Moreau had been involved in “several very serious altercations with peers” in the schoolyard and in the classroom: “. . . of particular concern . . . is the intensity of physical altercations . . . in addition Jonathan has threatened to pursue students away from school and has even threatened to do severe physical injury.”

The report goes on to state that Mr. Leduc-Moreau demonstrated poor impulse control and acting without considering consequences, as well as “extreme mood fluctuations, and these fluctuations can move between so angry and upset from to be [sic] crying or threatening to hurt people to be laughing and hugging in a very caring and gentle way.” This corresponds to his sister’s testimony that her brother had a hard time getting along with teachers and people, and that he was very loving to his family but could be very hot-headed and could get easily overly angry at little things.

Mrs. Moreau downplayed her son’s pre-accident behaviour until she was confronted with the school records, then conceded she could not remember the many conversations she had with school authorities. She acknowledged her son’s bad temper and explained that when he was young, he was very good with his younger siblings, and since the accident, he was patient and caring, and would change diapers and bottle feed his own two children, born after the accident to his second girlfriend, Jessica. I find Mrs. Moreau’s testimony confirms that her son’s moods and behaviours in regards to family were similar before and after the accident, and useful function in that regard has not been significantly impeded by his mental and behavioural impairments.

As another example, Mr. Leduc-Moreau himself stated that after the accident, he helped take care of his girlfriend Trina’s six-year old daughter while Trina was at work, and taught her how to swim, ride a bike, fly kites, and “all sorts of things.”²⁵

Regarding his life in general before the accident and after his mother left for New Brunswick, Mr. Leduc-Moreau testified: “ . . . After that I started going downhill. I didn`t really know what to do with myself. I started going out more. Started being bad when I met Justin.”²⁶ He stated that he experimented with mushrooms and other substances, and that his mother “knew I was doing good but she knew I was going downhill.”

I find this evidence indicates, overall, that all was not well from a mental or behavioural perspective with Mr. Leduc-Moreau before the accident, despite the positive spin the witnesses have tried to put on it, and his behaviour, and useful functioning, has not significantly changed since.

Mr. Leduc-Moreau’s mental and behavioural impairments do not appear to have modified his daily use of cannabis or changed the impact it has had on his life:

As noted, Dr. Levitt based his opinion that Mr. Leduc-Moreau became dependent on cannabis after the accident on the fact that, although he used it before the accident, “he didn’t need it to function prior to the accident as he does now.” This was the primary basis for his conclusion that Mr. Leduc-Moreau’s impairment levels were marked rather than moderate in the adaptation category.

Regarding marijuana use, Mr. Leduc-Moreau told Dr. Levitt that at that time, August 2012, he relied on it for depression, anxiety and stress, and that although he would still be in pain, he would feel relaxed and good about himself, and that he smoked it because “doctors wouldn’t prescribe me anything.” He stated he would start his day off with a joint. Based on Mr. Leduc-Moreau’s report, Dr. Levitt concluded: “It appears there are no longer opioids and various drugs of abuse being used, only marijuana.” Other than to report “heavy marijuana use to control pain and mood,” Dr. Levitt did not have any specific details of how much marijuana Mr. Leduc-Moreau was using at the time he saw him, and provided no opinion as to what “heavy” marijuana use would be. He also had no details about the extent of marijuana use before the accident. I find this significantly undermines his opinion that Mr. Leduc-Moreau developed a dependence on marijuana as a result of the accident.

Dr. Levitt also did not review surveillance evidence obtained by Echelon in July 2010, December 2011, and May, June and July 2013, which was available to him and showed Mr. Leduc-Moreau more active than he claimed to be. Dr. Levitt was also unaware of Mr. Leduc-Moreau’s six-month warehouse job in New Brunswick, and candidly admitted that he would need to re-assess Mr. Leduc-Moreau in light of this new evidence and that this could change his previous opinion, that Mr. Leduc-Moreau was not capable of working, or adapting in general, because he could only function when he was “high.” No re-assessment was arranged. This, too, undermines his opinion and I find it cannot be relied upon to support a conclusion that Mr. Leduc-Moreau suffered a marked impairment in the functional category of adaptation.

Much was made at the hearing of Mr. Leduc-Moreau’s frequent bouts of vomiting that began shortly after the accident, which he claimed prevented him from working. He testified that he would vomit due to pain. However, he also claims the vomiting was due to a condition known as “cannabinoid hyperemesis,” (i.e. vomiting due to chronic cannabis consumption) based on a diagnosis from an emergency room physician during a visit to the emergency department of Georgian Bay Hospital on May 29, 2014, after the start of this arbitration proceeding. That physician did not testify, and although Mr. Leduc-Moreau was granted a lengthy adjournment to consult an expert in the field on the basis that this was a “new” development, no expert was called.²⁷

However, I find the evidence indicates that diagnosis is unlikely. Chantal Moreau testified her brother started vomiting after the accident when he was unable to smoke marijuana and was prescribed narcotic painkillers. Hospital records from New Brunswick indicate Mr. Leduc-Moreau visited emergency departments due to vomiting during the period he has acknowledged abusing painkillers and using hard drugs. Dr. Zohar Waisman, a forensic psychiatrist who assessed Mr. Leduc-Moreau on Echelon’s behalf in 2010 and again in 2011, advised that Mr. Leduc-Moreau did not complain to him of vomiting on either occasion, and noted that it was during times of heavy drug use that Mr. Leduc-Moreau experienced episodes of vomiting and dehydration. His uncontradicted evidence was that marijuana does not have a physical addiction. I prefer Dr. Waisman’s evidence over that of Dr. Levitt because Dr. Waisman’s active practice deals specifically with people suffering withdrawal symptoms, and I find his opinion on that point to likely be better founded.

Dr. Michael Ives, Mr. Leduc-Moreau’s family doctor since childhood, saw him on June 13, 2014 due to his persistent vomiting. He noted in his chart that Mr. Leduc-Moreau was smoking between 1 and 3 grams of marijuana a day — a reduction from about 7 grams per day (which he considered to be heavy use) — but, I note, the same amount as Mr. Leduc-Moreau admitted to consuming pre-accident. Dr. Ives testified that he felt the vomiting was probably not related to marijuana use and that in fact marijuana “may have been better for him than using narcotics.”²⁸

Mr. Leduc-Moreau’s Whole Person Impairment (WPI) for physical injuries is inaccurate:

As noted above, Echelon assigned a WPI rating of 30% to Mr. Leduc-Moreau’s physical impairment, compared to the 32% rating assigned by Dr. Tania Henriques, the physiatrist who assessed Mr. Leduc-Moreau’s physical injuries on his behalf. Dr. Henriques awarded a 5% WPI for dyspnea, defined as “unusual breathlessness,” that she felt was due to Mr. Leduc-Moreau’s right-sided vocal cord paralysis. However, this does not accord with the criteria for rating dyspnea in the Guides, which, for a 5% WPI, requires partial obstruction of the “oropharynx, laryngopharynx, larynx, “or upper or lower trachea.²⁹ Removing the 5% rating for dyspnea lowers the 32% WPI, a lower rating which, when combined with Echelon’s 29% rating for mental and behavioural impairment results in a combined value of less than 52%. Dr. J. Mathoo, Echelon’s physiatrist, did not provide a rating for dyspnea, which I find is correct. I prefer his evidence over that of Dr. Henriques, who, at the time she assessed Mr. Leduc-Moreau, was far less experienced. There was no evidence to indicate Dr. Mathoo’s WPI rating for physical injuries was too low.

EXPENSES:

At my request, the parties provided written submissions on expenses. Mr. Leduc-Moreau’s expenses amount to $46,267.85 for legal fees and $30,358.03, HST included. Echelon’s expenses total $93,756.07, of which $66,889.71 is for legal fees.

Under s.282(11) of the Insurance Act and Rule 75 of the Dispute Resolution Practice Code (“the Code”), an arbitrator may award to either party all or part of the expenses of a proceeding according to criteria prescribed by the regulations.

Section 75 of the Code states as follows:

75.1 An adjudicator may award expenses to a party if the adjudicator is satisfied that the award is justified having regard to the criteria set out in Rule 75.2. The items and amounts which may be awarded are found in Rule 78 and the Schedule to the Expense Regulation found in Section F of the Code.

75.2 The adjudicator will consider only the criteria referred to in the Expense Regulation found in Section F of the Code. These criteria are:

(a) each party's degree of success in the outcome of the proceeding;

(b) any written offers to settle made in accordance with Rule 76;

(c) whether novel issues are raised in the proceeding;

(d) the conduct of a party or a party's representative that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and orders;

(e) whether any aspect of the proceeding was improper, vexatious or unnecessary.

(f) whether the insured person refused or failed to submit to an examination as required under section 42 of Ontario Regulation 403/ 96 (Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996) made under the Act or refused or failed to provide any material required to be provided by subsection 42 (10) of that regulation; and

(g) whether the insured person refused or failed to submit to an examination as required under section 44 of Ontario Regulation 34/10 (Statutory Accident Benefits Schedule — Effective September 1, 2010), made under the Act, or refused or failed to provide any material required to be provided under subsection 44 (9) of that regulation.

In this case, the relevant criteria are (a), (d) and (e).

Echelon was entirely successful in this proceeding, and further submits that the conduct of and on behalf of the Applicant resulted in unnecessary delay bordering on obstruction. Moreover, Mr. Leduc-Moreau and his counsel failed to comply with undertakings and orders, despite being granted adjournments to do so, including one of over a year, all of which added to the delays.

The record, including transcripts, exhibits at the hearing and my letters to the parties of June 17 and December 9, 2014, speaks for itself on these matters, and Echelon has accurately represented the facts in its detailed submissions. I agree that the Applicant’s conduct significantly and unnecessarily prolonged the arbitration proceeding.

However, I find Mr. Leduc-Moreau’s case had merit and was of considerable importance to him in terms of his ability to have access to treatment and rehabilitation. The WPI ratings for his physical injuries were very close, and the parties’ differed in their evaluation of mental and behavioural impairment in only one category. To pursue his claim to arbitration was a reasonable, if not necessary, course of action. I am mindful that there is an access to justice issue that must also be taken into account.

Taking these factors into account, I exercise my discretion to award Echelon its partial expenses of the arbitration proceeding of $9,000.00 in disbursements, inclusive of HST, and legal fees of $40,000.00, inclusive of HST.

June 30, 2016

Susan Sapin Arbitrator

Date

Financial Services Commission of Ontario

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 181

FSCO A13-004919

BETWEEN:

JONATHAN LEDUC-MOREAU

Applicant

and

ECHELON GENERAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mr. Leduc-Moreau’s application for arbitration is dismissed.

2. Mr. Leduc Moreau shall pay to Echelon General Insurance Company its expenses of $49,000.00, inclusive of HST.

June 30, 2016

Susan Sapin Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.
2. 2Pastore and Aviva Canada Inc., (FSCO A04-002496, February 11, 2009)
3. 3s.2(2.1) of the Schedule.
4. 4This method of converting a descriptive rating to a percentage was endorsed by the court in Kusnierz v. Economical Mutual Insurance Company (2010), 2010 ONSC 5749, 104 O.R. (3d) 113. WPI percentages for separate physical injuries and mental/behavioural impairments are not simply added to each other, but are “combined” using charts set out in the Guides.
5. 5According to the Guides, “A final estimated whole person impairment percent . . . may be rounded to the nearer of the two nearest values ending in 0 or 5.” P. 2/9;, i.e. a score of 52% would have to be rounded down to 50%. Mr. Leduc’s case straddles a very fine line. It is obvious that if his physical WPI could be found to be even a few percentage points higher, 55% would be within reach. However, for reasons explained further on under the heading, “Mr. Leduc-Moreau’s Whole Person Impairment (WPI) for physical injuries is inaccurate” at page 20, there is no evidence to support this.
6. 6American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 – Chapter 14/301
7. 7Guides c. 14, Page 294
8. 8Page 14/295 of the Guides.
9. 9Tab 95
10. 10Tab 114D, Page 29, report dated February 4, 2013 based on clinical interview conducted on August 14, 2012
11. 11Dr. Levitt’s report at p. 35
12. 12As told to Dr. R. van Reekum, who provided a neuropsychiatric assessment and report dated July 18, 2010; Exhibit 1, tab 95, p.19. Mr. Leduc-Moreau stated his father was a “crack addict.”
13. 13In 2006 Mr. Leduc-Moreau went to the emergency department with a stab wound in his thigh inflicted by his father during an altercation.
14. 14Levitt report p 21
15. 15Transcript, testimony of Chantal Moreau, p.12.
16. 16Exhibit 1, Tab 111.
17. 17Tab 43
18. 18Dr. R. van Reekum’s report. Page 2
19. 19EUO, P 75
20. 20Exhibit 3
21. 21As noted in Dr. van Reekum’s report at Page 3
22. 22Transcript, page 138
23. 23Transcript of the Examination-in-Chief of Mr. Leduc-Moreau on May 15, 2015 at page 23
24. 24Exhibit 1, Tab 101
25. 25EUO, July 22, 2010, page 6
26. 26Transcript pg. 46.
27. 27Having since reviewed the medical documentation in depth, I find the issue of vomiting was present from the beginning, and was not, in fact, a “new” development.
28. 28Transcript, Examination-in-Chief of Dr. Ives, September 30, 2015, at page 14.
29. 29Guides, pp. 230-231.```