June 28, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: Denise Ashby
Decision date: May 23, 2008
Leon Francis Rocheleau was injured in a car accident on September 28, 2000. He applied for and received Statutory Accident Benefits (SABs) from Allstate. Allstate stopped payments of weekly income replacement benefits on May 7, 2003.
One issue at the hearing was whether Mr. Rocheleau was entitled to receive a weekly income replacement benefit (IRB).
The car that he was driving was struck by a vehicle which failed to stop at the intersection. At the time of the accident, Mr. Rocheleau was employed as a gravel truck driver. Also, he owned and operated a 40-acre standard bred horse farm. Mr. Rocheleau and his wife testified at the hearing. Both were straightforward in their evidence and found to be credible.
In order to successfully claim for IRBs beyond the 104 week mark, Mr. Rocheleau had to establish on a balance of probabilities that as a result of the accident, he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience. Arbitration decisions have held that this test is not to be construed literally but rather in the context of the whole of the insured person´s education, training and experience, such that an individual is able to meet reasonable standards of productivity in a competitive market place.
Mr. Rocheleau revealed that although he did not sell the farm until March 2005, he was unable to engage in farming in a manner that was financially viable. During the period between the car accident and the sale of the farm, he and his wife attempted to save their dream of developing a standard bred boarding and training centre. However, it became apparent that his physical condition would not improve sufficiently for him to resume the essential duties and meet the physical demands of his pre-accident farming activities. Further, Mr. Rocheleau had limited education and his employment history since his teens had involved physical labour. As a result of the limitations caused by the impairments he suffered in the car accident, he could not meet competitive standards in any employment for which he was reasonably suited by education, training or experience.
Mr. Rocheleau believed his injuries were relatively minor and would heal. Therefore, he did not seek immediate medical attention. Following the accident he experienced right shoulder pain and severe lower back and unremitting left groin pain. He described the right shoulder pain as manageable. It had not presented a significant impediment to either his farm work or to his present activities of daily life. It was the lower back and groin pain which required large doses of analgesic medication. He testified that if he over extended himself he would spend a day or so in bed until the pain resolved sufficiently for him to resume his sedentary life style.
Surveillance of Mr. Rocheleau was conducted on behalf of Allstate. He testified that following the 9 holes of golf shown on the surveillance he did not leave his motor home the next day. He noted that this was not shown by the surveillance.
After the accident, Mr. Rocheleau continued his pre-accident practice of going south for the winter. Mr. Rocheleau and his wife testified that a major impetus for continuing this travel was to help Mr. Rocheleau deal with his depression. As well, the warm climate ameliorated his symptoms and made his pain more manageable. The couple testified that they took it very slow, stopping every hour or two. Mrs. Rocheleau testified that it was not unusual to stop for a day or more to permit her husband to stay in bed until his pain returned to manageable levels. Subsequent to the sale of the farm, they purchased a motor home which had an "air ride," a hydraulic shock system which reduced the impact of rough roads. This became their home year round. Prior to leaving for the winter, Mr. Rocheleau obtained sufficient quantities of prescription medication to take him through the winter.
At the time of the accident, Mr. Rocheleau was 54 years of age. He had left school after graduating from grade eight. He had been regularly employed as a truck driver for various firms. This work was very physical. During the approximately 30 years of his pre-accident career there was only a brief period when Mr. Rocheleau was unsuccessfully self-employed in more sedentary work. He purchased the farm and built additional stalls in the existing barn. They had customers who had agreed to stable their horses with them if the expansion went ahead. Mrs. Rocheleau testified that a local training centre was closing and the trainers who boarded horses at that facility were interested in moving to their farm.
Following the accident, they had an additional barn built. It provided an additional 40 stalls. One trainer had contracted to rent 20 of these stalls. As well, the training track was widened from 25 feet to 40 feet. These enhancements were undertaken as an attempt to implement the pre-accident plans for expansion. Prior to the accident, Mr. Rocheleau did the majority of the farm work. To care for the horses was a very physical nature of work. The track maintenance had to be done early in the morning to ensure it was ready for the horses to run by 7 a.m. It was very important to the success of his enterprise. Mr. Rocheleau testified that because his was a small operation he could not afford to hire someone to do the work. As well, it was difficult to find staff to do the arduous work of moving the manure piles, removing snow and conditioning the track in the early morning. For the 4½ years he kept the farm following the accident he relied on the efforts of his wife and the volunteer work of tenants and friends. In the end, Mr. Rocheleau had to accept that his health was not going to improve and he could not continue to pursue his dream.
Mr. Rhoceleau´s physician was Dr. Despard. With the exception of the treatment for asthma she described Mr. Rocheleau as very healthy. Following the car accident, Mr. Rocheleau´s physical health was significantly changed. He suffered from severe lower back and groin pain. In Dr. Despard´s opinion, the severity of the pain prevented him from working at either of his pre-accident jobs. She was aware that he continued to farm in a limited manner. She diagnosed him as having direct renal contusion with associated deep visceral back pain and hematuria with severe cremasteric muscle spasms. Among others, she characterized him as suffering from chronic pain with associated depression. She was of the opinion that while the medications might make his pain bearable, it was unlikely that he would be able to return to either pre-accident employment or level of functioning.
His treating psychologist, Dr. MacDonald, was of the opinion that Mr. Rocheleau´s depression resulted from the pain he was experiencing and the limitations it placed on his life. He diagnosed Mr. Rocheleau as having chronic pain and features of post-traumatic stress disorder.
An assessor met with Mr. Rocheleau to conduct a worksite analysis of his farm operation. It was a very limited report focusing on the narrow issue of feeding and watering the horses. There was no information as to what the heavy activities of his farming activities might be. There was no assessment of Mr. Rocheleau´s ability to do those tasks. There was no mention of who had assumed those tasks. There was no indication that any attempt was made to discuss the farm operation with those who were doing the work. There was no mention of the fact that Mr. Rocheleau breeds and trains horses for racing.
Dr. Taylor assessed Mr. Rocheleau on behalf of Allstate. Dr. Taylor´s assessment was that Mr. Rocheleau did meet the documented physical demands of the essential tasks for breeding his horses, which included feeding and watering the animals and general clean-up tasks. According to Dr. Taylor, there did not appear to have been a significant interval change in Mr. Rocheleau´s status between 2002 and the present. It was in his opinion that Mr. Rocheleau could have carried on with his farm operation from 2002 to the present if he so desired. Dr. Taylor concluded that it was also his opinion that with appropriate restrictions, Mr. Rocheleau could have continued with modified employment from 2002 to present. Therefore, in Dr. Taylor´s opinion he did not suffer a complete inability to engage in any employment for which he was reasonably suited by education, training or experience beyond September of 2002.
Among the restrictions Dr. Taylor set out were: avoidance of repetitive overhead use of "his right upper extremity, lifting above mid chest level with his right upper extremity, heavy lifting in excess of 10 kg., repetitive bending or twisting at the waist and prolonged twisting at the waist and prolonged periods of sitting or standing."
In an assessment made by Dr. Andrew Kertesz, a neurologist, on behalf of Allstate, he concluded that although Mr. Rocheleau appeared to have chronic pain syndrome which prevented him from working, he had no objective neurological impairment underlying his pain. Dr. Kertesz´s report was not of any assistance in respect of the impact of Mr. Rocheleau´s chronic pain on his ability to be competitively employed.
Dr. Scott H. Garner, a specialist in physical medicine and rehabilitation, assessed Mr. Rocheleau as well. Dr. Garner concluded, as did Dr. Taylor, that Mr. Rocheleau had physical limitations which limited his tolerance for excessive movement or activity. Dr. Garner noted that Mr. Rocheleau could not tolerate prolonged sitting or standing or heavier lifting or carrying. He concluded that because Mr. Rocheleau had limited education and limited reading, communication, mathematical and computer skills, he was not competitively employable.
Dr. Taylor was of the opinion that Mr. Rocheleau was employable. This opinion was inconsistent with the restrictions he set out in his report. Dr. Taylor relied on the flawed reports of the worksite assessor when considering the farm work that Mr. Rocheleau was required to do. His opinion is therefore compromised by his reliance on its deficiencies.
The preponderance of the medical evidence led to the conclusion that Mr. Rocheleau suffered from severe chronic pain of the lower back and left groin and associated depression. Dr. Despard´s opinion was accepted, that Mr. Rocheleau was unemployable due to chronic pain. She had a long association with Mr. Rocheleau as his treating physician. It was found that Mr. Rocheleau´s physical restrictions caused by chronic pain prevented him from engaging competitively in physically demanding work. His physical impairments and the financial reality of being unable to hire someone to replace his pre-accident contribution resulted in the sale of the farm. It was conclusive that Mr. Rocheleau was unable to productively engage in farming. The surveillance evidence did not support an inference that Mr. Rocheleau could be competitively employed. It failed to show the totality of the golf game, including the times he and his wife allowed other golfers to play through while they rested.
The evidence supported the conclusion that Mr. Rocheleau was unable to competitively engage in the essential tasks of truck driving as a consequence of his accident related impairments. Mr. Rocheleau´s lack of education and inability to tolerate prolonged periods of sitting or standing prevented him from engaging in more sedentary employment.
The preponderance of the evidence led to the conclusion that Mr. Rocheleau was suffering a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.
Considerations for Special Award:
Allstate was advised in 2001 that Mr. Rocheleau did not agree with the worksite evaluation which concluded he could engage in farming. The report was fatally deficient. In the two years that followed its receipt of these reports, Allstate failed to obtain a further report. Rather, in his note dated June 25, 2001, the adjuster dismissed the problem on the basis that Mr. Rocheleau had failed to give the assessor all the information.
The preponderance of the medical evidence, within Allstate´s possession in the spring of 2001, led to the conclusion that Mr. Rocheleau was unable to engage in physical labour. Allstate failed to have Mr. Rocheleau´s vocational skills assessed in order to determine if there was suitable sedentary employment that he might seek and if necessary assist him in retraining for such employment.
Allstate´s failure to fully investigate whether Mr. Rocheleau could competitively engage in farming or some other form of employment fell well below the reasonable standard expected of an insurer. This failure was aggravated by its arbitrary stoppage of Mr. Rocheleau´s income replacement benefit in the absence of any evidence that there had been any change in either the circumstances of the claim or Mr. Rocheleau´s medical condition. Therefore, Mr. Rocheleau was entitled to a special award. To obtain the highest level of award, the conduct of the insurer must be particularly egregious.
In the circumstances of this matter, an award at the low end of the mid-range allowable was appropriate to meet the principles of deterrence and proportionality. The award that was intended to be made was well below the maximum allowable, but it was sufficient to base it on a reasonable estimate of what was outstanding. This approach was consistent with the mandate of an administrative tribunal to provide a just, quick and inexpensive resolution.