Applicant Fails to Prove Error of Law Made - Appeal Denied

January 19, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Leduc-Moreau and Echelon

Decision Date: November 30, 2017
Heard Before: Adjudicator David Evans

CATASTROPHIC IMPAIRMENT: applicant appeals decision that he is not CAT impaired on the basis of errors in law; Arbitrator Sapin finds that no error of law has been made and ruling stands.

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:

1. The Arbitrator’s Order of June 30, 2016 is confirmed, and this appeal is dismissed.
2. 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.

NATURE OF THE APPEAL

Mr. Leduc-Moreau appeals Arbitrator Sapin’s order that he did not suffer a catastrophic impairment pursuant to the SABS–1996[1] in a 2009 automobile accident. The only issue was whether Mr. Leduc-Moreau had suffered a marked impairment in adaptation. 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, Arbitrator Evans determined she correctly interpreted and applied the law and made factual findings that are immune from review. Accordingly, the appeal is dismissed.

Background

Jonathan Leduc-Moreau, nineteen, 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. Mr. Leduc-Moreau’s psychologist found him to have a marked Class 4 impairment in the fourth domain, “adaptation.” By way of contrast, Echelon’s psychiatrist, found Mr. Leduc-Moreau to have only a moderate Class 3 impairment in all domains. The case turned solely on whether the psychologist or psychiatrist was correct.

The Arbitrator then set out how mental and behavioural impairments are rated. She examined all of the evidence and testimony and found Mr. Leduc-Moreau’s position undermined since he used marijuana daily and also suffered from many of the same issues and difficulties before the accident. 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.

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. 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.

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.

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 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.

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 Arbitrator Evans 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 he 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.

Arbitrator Evans found no merit in this submission.

Mr. Leduc-Moreau submits 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. Arbitrator Evans did not 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. 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.

Arbitrator Evans found not 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, Arbitrator Evans found 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, 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.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.