Jonathan Leduc-Moreau v. Echelon General Insurance Company, 2017 ONFSCDRS 320

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario

Neutral Citation: 2017 ONFSCDRS 320

Appeal P16-00061

Appellant

and

Respondent

BEFORE:

David Evans

Andrew Kerr for Mr. Leduc-Moreau

Jamie Pollack for Echelon General Insurance Company

September 11, 2017: confirmed matter would be determined on the record

APPEAL ORDER

Under section 283 of the Insurance Act, R.S.O. 1990 c. I.8 as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Regulation 664, R.R.O. 1990, as amended, it is ordered that:

The Arbitrator’s Order of June 30, 2016 is confirmed and this appeal is dismissed.
If the parties are unable to agree about the legal expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 30, 2017

David Evans Director’s Delegate

Date

REASONS FOR DECISION

I. NATURE OF THE APPEAL

Mr. Leduc-Moreau appeals Arbitrator Sapin’s order that he did not suffer a catastrophic impairment pursuant to the SABS–1996¹ in a 2009 automobile accident.

The only issue was whether Mr. Leduc-Moreau had suffered a marked impairment in adaptation.

However, the Arbitrator conducted a thorough review of the evidence and provided ample opportunity for Mr. Leduc-Moreau to prove his case. As set out below, I find she correctly interpreted and applied the law and made factual findings that are immune from review. Accordingly, the appeal is dismissed.

II. BACKGROUND

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 suffered fractures to the C6 and C7 vertebrae in his neck, a mild traumatic brain injury, right sided vocal cord paralysis, and a damaged thoracic nerve that affected his right shoulder blade.

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 were 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.

In December 2011 Echelon conducted a multidisciplinary insurer’s assessment which concluded that Mr. Leduc-Moreau’s accident-related impairments were not catastrophic.

Mr. Leduc-Moreau claimed that his accident injuries and resulting psychological difficulties including cannabis dependence qualified as catastrophic impairments under the SABS, pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993. Under s. 2(1.2)(g) of the SABS, 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. Mr. Leduc-Moreau’s psychologist, Dr. Brian Levitt found him to have a marked Class 4 impairment in the fourth domain, “adaptation.” By way of contrast, Dr. Zohar Waisman, Echelon’s psychiatrist, found Mr. Leduc-Moreau to have only a moderate Class 3 impairment in all domains. The case turned solely on whether Dr. Levitt was correct.

The Arbitrator then set out how mental and behavioural impairments are rated. She noted that for Mr. Leduc-Moreau’s impairment levels to be considered marked in the area of adaptation, and therefore catastrophic under s. 2(1.2)(g), he had to show that his impairment levels significantly impeded useful functioning in that domain. She then set out the description in the Guides of the adaptation domain and the concerns related to it. She concluded that Mr. Leduc-Moreau’s accident-related impairment levels did not significantly impede useful functioning.

In reaching that conclusion, she examined the evidence of Dr. Levitt, a clinical and rehabilitation psychologist, who assessed Mr. Leduc-Moreau’s mental and behavioural impairments in August 2012. The Arbitrator noted that Dr. Levitt’s 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: he had to be “high” to work, which was not sustainable. Dr. Levitt also noted anger-management issues, along with cognitive and communication difficulties.

However, the Arbitrator found Dr. Levitt’s opinion was undermined because evidence showed that before the accident Mr. Leduc-Moreau used marijuana daily and also suffered from those same issues and difficulties. She also noted there was evidence that his accident-related impairment levels were compatible with some, but not all, useful functioning, placing him at the moderate level in the adaptation domain. This evidence included his working for six months after the accident in a warehouse in New Brunswick and engaging in activities that demonstrated an ability to function usefully in a wide range of activities similar to those he engaged in before the accident. She also noted that the evidence showed that Mr. Leduc-Moreau was not always accurate or consistent in what he told assessors, so their lack of certain relevant historical or collateral information undermined their opinions.

The Arbitrator reviewed Mr. Leduc-Moreau’s pre-accident life and work, noting that his mother, Deborah Moreau, left the family when he was sixteen and moved to New Brunswick, apparently because of her husband’s drug use, and assessors noted he was subjected to a violent home environment with parents who abused drugs. He dropped out of school in Grade 10, with no plans to go to school but rather to open a “side garage” together with his father. He also helped his father tend his marijuana plots. His recreational hobbies were active and outdoors: dirt-biking, fishing, boating, snowboarding and snowmobiling.

The Arbitrator found that Mr. Leduc-Moreau’s pre-accident employment choices were influenced not only by his preferences, but also by his difficulties in school. She found that Mr. Leduc-Moreau suffered from cognitive difficulties that pre-dated the accident. She found that, for Mr. Leduc-Moreau, work-like settings had 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.

As for Dr. Levitt’s opinion that Mr. Leduc-Moreau’s cannabis use changed after the accident, the Arbitrator found that opinion was not borne out by the evidence. She found that Mr. Leduc-Moreau downplayed his use of marijuana pre-accident and used it more regularly than admitted.

The Arbitrator then found there was 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. She found that his impairments had not much modified his marijuana use or changed the impact it had on his life.

Regarding Mr. Leduc-Moreau’s ability to work, the Arbitrator noted that after the accident he developed substance addiction first with painkillers, then with hard drugs, and suffered from withdrawal symptoms that included vomiting. She found that Mr. Leduc-Moreau’s subjective reports about his pain and physical abilities, or about his relationship with drugs, were not always consistent with the objective evidence. At the start of the hearing in May 2014, it turned out that Mr. Leduc-Moreau had been working as an order picker/unloader at Eclipse Advantage Canada, the New Brunswick warehouse, but stopped after six months. The Arbitrator found 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. However, she also found that he had never actually held such a job, or ever worked in a similar occupational environment or work-like setting for any extended period of time pre-accident. She also found that he had a number of skills important to the type of work he liked and was able to do pre-accident. Accordingly, she found Mr. Leduc-Moreau’s inability to continue at the warehouse did not suggest he was incapable of work similar to what he did before the accident, in similar work-like settings. Consequently, she found his impairment levels were compatible with some, but not all, useful functioning in work-like settings and corresponded most closely to the moderate impairment level.

The Arbitrator found this same moderate level of impairment applied to Mr. Leduc-Moreau’s passion for cars and his interest in outdoor activities. She noted that he had never planned to open a garage by himself, 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. As for his outdoor activities, the Arbitrator found he was clearly able to engage in more activities than he claimed. She found his level of mental impairment to be compatible with some, but not all useful function in these recreational activities, and therefore moderate.

Overall, the Arbitrator did not find Mr. Leduc-Moreau to be a credible witness. She found that Mr. Leduc-Moreau was prone to overstating his impairments and could not be taken at face value.

The Arbitrator found Mr. Leduc-Moreau’s mental and behavioural issues, including anger management, pre-dated the accident. She reviewed the school records that showed poor impulse control and extreme mood fluctuations. The evidence of his mother confirmed that her son’s moods and behaviours in regards to family were similar before and after the accident. The Arbitrator concluded that Mr. Leduc-Moreau’s behaviour and useful functioning had not significantly changed since the accident.

With respect to any impairment arising from cannabis use, the Arbitrator found that Mr. Leduc-Moreau’s mental and behavioural impairments had not modified his daily use of cannabis or changed the impact it has had on his life. As noted earlier, the primary basis for Dr. Levitt’s conclusion that Mr. Leduc-Moreau’s impairment levels were marked rather than moderate in the adaptation category was his opinion that Mr. Leduc-Moreau became dependent on cannabis after the accident.

However, the Arbitrator found that Dr. Levitt’s lack of details about the extent of marijuana use before the accident significantly undermined this opinion. He had also not reviewed surveillance evidence that showed Mr. Leduc-Moreau more active than he claimed to be, nor was he aware of Mr. Leduc-Moreau’s six-month warehouse job. While Dr. Levitt admitted that this evidence could change his previous opinion, no re-assessment was arranged. The Arbitrator found this opinion could not be relied upon to support a conclusion that Mr. Leduc-Moreau suffered a marked impairment in the functional category of adaptation.

The Arbitrator noted that 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. This was claimed to be due to either pain or “cannabinoid hyperemesis,” (i.e. vomiting due to chronic cannabis consumption). This diagnosis was allegedly made after the start of the hearing, but 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. Further, the Arbitrator noted the vomiting was not a new development but was present from the beginning. In any event, the Arbitrator found that diagnosis was unlikely. Dr. Zohar Waisman, a forensic psychiatrist, testified that marijuana does not have a physical addiction. The Arbitrator preferred Dr. Waisman’s evidence over that of Dr. Levitt because Dr. Waisman’s active practice deals specifically with people suffering withdrawal symptoms.

Finally, the Arbitrator briefly dealt with whether Mr. Leduc-Moreau’s Whole Person Impairment for physical injuries combined with the moderate psychological impairment would reach the level of 55% for a catastrophic impairment under s. 2(1.2)(f) of the SABS. She found that the 32% rating assigned by Dr. Tania Henriques, the physiatrist who assessed Mr. Leduc-Moreau’s physical injuries on his behalf, was too high. She accepted Echelon’s assigned WPI rating of 30% for physical impairment which, when combined with Echelon’s 29% moderate rating for mental and behavioural impairment resulted in a combined value of less than the threshold, even if rounded.

As for expenses, the Arbitrator noted that not only was Echelon successful but the Applicant’s conduct significantly and unnecessarily prolonged the arbitration proceeding. Moreover, she wrote, 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. However, she also noted that 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, so the claim had merit and was worth pursuing.

Accordingly, the Arbitrator reduced Echelon’s claimed legal expenses of about $94,000 to $49,000, inclusive of disbursements and HST.

III. ANALYSIS

The Arbitrator’s comments about the problems in Mr. Leduc-Moreau’s conduct during the arbitration hearing are also germane to the appeal process. Counsel for Mr. Leduc-Moreau never did provide written submissions for the appeal. After I made several attempts to obtain them, there was a teleconference at which a final deadline for them was set. The deadline was not met, so I converted the hearing to one on the record, to be determined based on the Notice of Appeal and additional submissions provided on whether to grant a stay of the Arbitrator’s expenses order, and on the written submissions provided by Echelon.

Mr. Leduc-Moreau submits that the Arbitrator erred in ordering that he could not provide any additional expert evidence or reports after the adjournment of June 17, 2017, other than those the Arbitrator specifically specified.

I find no merit in this submission. As noted above, the Arbitrator granted a lengthy adjournment to allow Mr. Leduc-Moreau to obtain expert evidence on the allegedly new development of cannabinoid hyperemesis. Time lines were set out for the insured to provide the name and qualifications of the expert and to serve the report, and case conferences were scheduled to ensure compliance with the conditions. Mr. Leduc-Moreau was also permitted to obtain other medical reports including from his family physician and Dr. Levitt. However, given that Mr. Leduc-Moreau failed to satisfy those conditions, the Arbitrator ruled on December 9, 2014 that no further expert reports could be submitted. The basis of the order included that non-compliance as well as the previous history of non-compliance with the Rules, and the fact the medical issue raised regarding cannabis use was long-standing and well known to the treatment providers. Mr. Leduc-Moreau had agreed to the proposed timetable and had ample opportunity to obtain further reports. I find nothing unfair in the order, nor anything to support the contention that the Arbitrator acted outside of the scope of her authority.

Mr. Leduc-Moreau submits that the Arbitrator erred in comparing his inability to work now with his pre-accident employment activities when he was a teenager as opposed to what his employment activities would have been as an adult. He also submits that the Arbitrator focused on physical and not psychological limitations, did not consider instances of his uncontrollable anger or the fact he frequently moved back and forth between New Brunswick and Ontario, and accepted his evidence about what he thought he could do despite credibility issues.

However, the submission basically consists of allegations that the Arbitrator failed to consider certain evidence or did not give certain evidence proper weight. It is not my role to weigh the evidence, as s. 283(1) of the Insurance Act provides that appeals are only on questions of law. Beyond that, the Arbitrator did address all the points raised by Mr. Leduc-Moreau – the psychological limitations, anger issues, and moves – and she never suggested the entirety of his testimony should be ignored despite credibility issues. Nor do I find anything in the decision to suggest the Arbitrator relied on any improper legal tests when reviewing the fact-based evidence obtained at the hearing.

Mr. Leduc-Moreau submits the Arbitrator erred in failing to consider his chronic vomiting in determining his level of impairment regarding adaptation and that a finding of impairment caused by chronic vomiting, regardless of its genesis, should have been reviewed by the Arbitrator.

However, the Arbitrator did address the vomiting issue, and the fact that she did not give it the weight Mr. Leduc-Moreau thinks she should have is not an error of law.

The same can be said of Mr. Leduc-Moreau’s submission that the Arbitrator interchanged cannabis use with addiction and failed to consider his psychological addiction to marijuana when determining his adaptation impairment. There is nothing to suggest she substituted use with addiction, and her finding of fact on his use of marijuana does not raise an issue of law. She also thoroughly addressed the evidence regarding pre- and post-accident cannabis use and the medical evidence thereon.

Nor do I find any merit in Mr. Leduc-Moreau’s submission that the Arbitrator failed to consider whether he was psychologically disabled from working. The whole decision turned on a discussion of Mr. Leduc-Moreau’s psychological impairments, which the Arbitrator examined in depth. Furthermore, the issue was whether he was catastrophically impaired, not whether he could work or not.

The Arbitrator’s alleged failure to consider Mr. Leduc-Moreau’s demeanour during the hearing, as he submits, is again a matter of weighing evidence.

Mr. Leduc-Moreau submits that the Arbitrator erred in considering that he had not suffered any change in mental or behavioural function since the accident when the medical evidence showed he had at least a moderate impairment. However, the test is not whether there was any change in function or at least a moderate impairment, but rather whether there was a marked impairment. The Arbitrator addressed the test, and the parties agreed that the only possibly marked impairment was in adaptation, which the Arbitrator dealt with throughout her decision. Again, I see no error in the Arbitrator’s order.

Finally, Mr. Leduc-Moreau submits that the Arbitrator was biased, perhaps because of the adjournment request. I find nothing to support this contention, nor did Mr. Leduc-Moreau provide anything beyond this empty submission. As for the adjournment request, the Arbitrator granted a lengthy one, over the strenuous objections of counsel for Echelon, which suggests no bias against Mr. Leduc-Moreau.

In conclusion, I find the Arbitrator correctly applied the law and made factual findings that are not subject to review on appeal. Accordingly, the appeal is dismissed and the Arbitrator’s decision is affirmed.

IV. EXPENSES

If the parties are unable to agree about expenses of this appeal, an expense hearing may be arranged in accordance with Rule 79 of the Dispute Resolution Practice Code.

November 30, 2017

David Evans Director’s Delegate

Date

Footnotes

The Statutory Accident Benefits Schedule — Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended.