Neutral Citation: 1999 ONFSCDRS 181

FSCO A98-000567

BETWEEN:

SOUHAM AMIRA NESRALLAH (GILLIS)

Applicant

and

DOMINION OF CANADA GENERAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Stewart McMahon

Heard: May 17, 18 and 19, 1999, in Ottawa, Ontario.

Appearances:

Mrs. Nesrallah appeared in person

Catherine Cotton for Dominion of Canada General Insurance Company

Issues:

The Applicant, Souham Amira Nesrallah (Gillis), claims that on May 18, 1996, while she was walking by the curb on the east side of Florida Street in the City of Ottawa, she was struck and knocked down by a motor vehicle operated by Mrs. Vera Bociurkiw. Dominion of Canada General Insurance Company ("Dominion"), paid Mrs. Nesrallah weekly benefits and various supplementary benefits pursuant to the Schedule¹ until April 29, 1997, when it terminated benefits. The parties were unable to resolve their disputes through mediation, and Mrs. Nesrallah (Gillis) applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.

The issues in this hearing are:

Is Mrs. Nesrallah entitled to receive "other disability benefits" pursuant to section 19 of the Schedule for any period beyond April 29, 1997?
Is Mrs. Nesrallah entitled to either attendant care or housekeeping expenses after September 30, 1996?
Is Mrs. Nesrallah entitled to be reimbursed for various prescriptions purchased since the accident?

Result:

Mrs. Nesrallah is not entitled to further weekly benefits.
Mrs. Nesrallah is not entitled to further housekeeping expenses after September 30. 1996. She is entitled to $120 representing expenses incurred by her sister while attending at the hospital.
Mrs. Nesrallah is not entitled to be reimbursed for the prescription expenses.

EVIDENCE AND ANALYSIS:

Preliminary Matters:

Was Mrs. Nesrallah involved in a motor vehicle accident on May 18, 1996?

At the commencement of the hearing, the Insurer indicated that notwithstanding the fact that it had paid benefits for approximately a year, it was now taking the position that Mrs. Nesrallah had not been struck by the vehicle operated by Mrs. Bociurkiw, and hence had not been involved in a "motor vehicle accident." After hearing from the witnesses and reviewing an emergency report that recorded evidence of bruising and swelling of the left elbow, I was satisfied that Mrs. Nesrallah was struck and ruled that she had been involved in an accident. The evidence and my analysis on this point are set out briefly in the following paragraphs.

On the morning of May 18, 1996, Mrs. Nesrallah was walking northbound on Florida Street a few blocks from her home. She was walking in the same direction as vehicular traffic. There were cars parked ahead of her, and on the opposite side of the street. Mrs. Nesrallah testified that there was no sidewalk and that she was a foot or two from the curb. Mrs. Nesrallah noticed a van pulling out from a parking spot on the opposite side of the road. At that same moment, she was struck from behind by another vehicle. She stated that she felt a sharp pain on her left side and fell to the ground. Mrs. Nesrallah believes that she was struck by the vehicle's side mirror. According to Mrs. Nesrallah, the vehicle then stopped in the middle of the road and the driver (Mrs. Bociurkiw) got out and began to yell, berating her for being in the middle of the road.

Mrs. Nesrallah recalls Mrs. Danielle Leclerc, whom she recognized from the neighbourhood, approaching and comforting her while she was being yelled at. She also recalls Mrs. Leclerc writing down the vehicle's licence plate before Mrs. Bociurkiw left, and then getting her a glass of water from somewhere. Mrs. Nesrallah stated that she then walked home and called her sister, who came over and drove her to the emergency department of the Ottawa General Hospital.

Mrs. Bociurkiw testified that as she turned on to Florida Street she saw Mrs. Nesrallah hunched over and walking slowly "very far from the curb." According to Mrs. Bociurkiw, she had to steer around Mrs. Nesrallah and after doing so, stopped and exited the car so that she could warn Mrs. Nesrallah about walking in the middle of the road. Mrs. Bociurkiw testified that she did this for Mrs. Nesrallah's benefit. She later admitted that she may have been a little angry, but that she only spoke loudly to ensure that Mrs. Nesrallah understood the danger. Mrs. Bociurkiw vehemently denied even the possibility that she had struck Mrs. Nesrallah. She stated that at all times Mrs. Nesrallah remained standing in the middle of the road.

Mrs. Leclerc was called to testify on behalf of Mrs. Nesrallah. She testified that as she was walking her child to a party at a neighbour's house, she noticed a car stopped in the middle of the road, and the driver standing behind the car yelling at a woman sitting on the curb. She approached the woman sitting on the curb. Mrs. Leclerc recognized the woman (Mrs. Nesrallah) as someone who lived in the neighbourhood, but she did not know her name and had not spoken to her before this incident. She testified that she recalled Mrs. Nesrallah hugging her left side and yelling that she had been hit by the car. Mrs. Leclerc remarked that Mrs. Bociurkiw never denied that she had hit Mrs. Nesrallah. She did recall the driver yelling at Mrs. Nesrallah, asking why she had been walking in the middle of the road.

Mrs. Leclerc recalls writing down the licence number of the car because Mrs. Bociurkiw left the scene, and then walking Mrs. Nesrallah to a nearby house where she got her a glass of water. She testified that during the encounter Mrs. Nesrallah looked like she was in pain and frightened and that she encouraged her to go to the hospital.

Mrs. Leclerc was contacted by the police and provided two statements. Neither party had obtained the statements and they were not tendered as evidence at the hearing. The police report indicates that no charges were laid as there was no proof of contact.

Mrs. Nesrallah tried to get Mrs. Leclerc to comment favourably on her good character and reputation in the neighbourhood. Mrs. Leclerc declined, indicating that she recognized Mrs. Nesrallah as someone from the neighbourhood but that she did not "know" her. I accept Mrs. Leclerc as an independent observer who candidly admitted the limits of her own memory. I place significant weight on her evidence.

Mrs. Leclerc did not see the collision, but her evidence that she found Mrs. Nesrallah sitting on the curb contradicts Mrs. Bociurkiw's evidence that Mrs. Nesrallah remained standing in the middle of the road, and is consistent with Mrs. Nesrallah's evidence that she was knocked down.

I reject Mrs. Bociurkiw's characterization of her intentions in speaking to Mrs. Nesrallah as benign. It is inconsistent with the tone remarked upon by Mrs. Leclerc. I also take note of Mrs. Leclerc's comment that at no time did Mrs. Bociurkiw deny Mrs. Nesrallah's accusation that she had been hit. If Mrs. Bociurkiw did not think she had hit Mrs. Nesrallah, one would have expected her to have denounced the accusation at least as heartedly as she was berating Mrs. Nesrallah for having been in the middle of the road.

Finally, I note that the emergency record which documents bruising and swelling is consistent with Mrs. Nesrallah's version of events.

I am satisfied that Mrs. Nesrallah has established, on a balance of probabilities, that she was struck by Mrs. Bociurkiw's vehicle. Fault is immaterial to these proceedings, and where precisely on the road the collision took place is of no concern to me. I make no comment on these latter matters.

Does Mrs. Nesrallah's claim for weekly benefits fall into the "education disability" category or the "other disability" category?

The Insurer paid Mrs. Nesrallah weekly benefits pursuant to the "other disability" category. The Application for Arbitration refers to a demand for "other disability" benefits, but also seeks payment of a lump sum education benefit. This latter benefit is generally an adjunct to a claim for weekly "education disability" benefits. The 'pre-hearing letter" refers only to the claim for "other disability" benefits. At the commencement of the hearing, Mrs. Nesrallah indicated that she was seeking weekly benefits pursuant to the "education disability" category which pays a higher weekly benefit.

Section 15 (1)1 of the Schedule provides that weekly education benefits are only available to school-aged children, those enrolled in full-time secondary or post-secondary school, or those who have recently finished school and are still looking for work. The 'other disability" category, which is governed by Part V of the Schedule, is a catch-all benefit for those who do not fit into one of the more specific weekly benefit categories.

Mrs. Nesrallah testified that she was completing high school on a full-time basis as part of the Ottawa Board of Education’s continuing education program and that she had documentation to establish this fact. The only paper work Mrs. Nesrallah was able to adduce indicated that she was taking a single English course. The course ran two nights per week throughout the winter and spring of 1996. After a lengthy discussion, Mrs. Nesrallah conceded that she was taking only one course because that was all she was allowed to take, but that she spent all her time studying, and that she should not be penalized by the limits of the program. I advised Mrs. Nesrallah that notwithstanding her views on the fairness of the matter, the Schedule provided for a weekly education benefit only for "full time" students. I indicated to Mrs. Nesrallah that taking a single course at a time, no matter how diligently she applied herself, did not amount to being a "full time" student, and that accordingly, the hearing would proceed on the basis that she fell within the "other disability" category.

Mrs. Nesrallah presented her case without the benefit of counsel, and there were occasions when it was clear that she was having difficulty following the process. This is to be expected. However, there were other occasions when Mrs. Nesrallah was intentionally evasive or attempted to skew the evidence. A number of her doctors have commented on the fact that she can be quite manipulative. Mrs. Nesrallah's insistence that she was a full-time student is an example. I regard Mrs. Nesrallah's uncorroborated evidence with caution.

Attendant Care and Housekeeping Expenses:

Housekeeping expenses were identified in the mediator's report as an item that was settled based upon the Insurer's agreement to make a contribution to this expense until September 30, 1996. The Application for Arbitration refers to a demand for further housekeeping expenses and attendant care benefits. Neither of these issues are identified in the pre-hearing letter. Mrs. Nesrallah testified that her sister, Helen Monsour, helped care for her and she called her sister in support of this claim. On the last day of the hearing Mrs. Nesrallah presented two statements from her sister setting out the amounts claimed. The Insurer consented to the inclusion of this claim.

Weekly Benefits:

Background:

Mrs. Nesrallah is 57 years old. She immigrated to Canada from Lebanon at age 18. She married in 1965 and separated in 1977. Mrs. Nesrallah has three grown children. She lives alone in a one-bedroom apartment.

Before embarking upon a review of the complaints Mrs. Nesrallah attributes to being struck by Mrs. Bociurkiw's vehicle, a survey of her prior health and life experiences is necessary.

The earliest medical records filed at the hearing date back to 1976. In the ensuing two decades, Mrs. Nesrallah has seen countless physicians. The medical records available to me are only a fraction of what must be voluminous files, and give only snapshots of her interaction with health care providers. However, a number of patterns emerge.

Mrs. Nesrallah has been involved in three traumatic events that are described below. After each, Mrs. Nesrallah went on to develop chronic complaints.
Mrs. Nesrallah's complaints tend to escalate from the specific to the general.
The full extent of Mrs. Nesrallah's physical symptoms are not explainable on the basis of objective testing.
Mrs. Nesrallah tends to respond dramatically and irrationally, and her physicians have frequently suggested that her condition is primarily psychological, a diagnosis Mrs. Nesrallah steadfastly rejects.
Mrs. Nesrallah tends to see several doctors who share the same speciality concurrently.
When the outcome, be it in a purely medical, or medico-legal context, is not what Mrs. Nesrallah expects, she threatens to sue her physicians.
Mrs. Nesrallah claims that each incident has forced her to stop working or studying, and has curtailed her ability to socialize.
After each new incident, Mrs. Nesrallah attributes most of her complaints to the most recent event, even when they overlap with complaints previously attributed to the prior incident.

In 1976, Mrs. Nesrallah underwent a tonsillectomy. Shortly thereafter she began to complain of pain spreading from her neck down the entire left side of her body. This pain became associated with occasional left-sided numbness and paresthesia of the hands and feet. According to a clinical note prepared by Dr. Preston, a neurologist, in February 1979, Mrs. Nesrallah had by that time seen two other neurologists, two general surgeons, an orthopod, a cardiologist, a vascular surgeon and several family physicians. Dr. Preston could find no neurological basis for Mrs. Nesrallah's complaints and referred her to Dr. Sokolowska, a psychiatrist.

Mrs. Nesrallah saw Dr. Sokolowska once in 1979 and then a further six times in 1981. Much of their conversation concerned Mrs. Nesrallah's relationship with men, but there are references to her physical difficulties. The doctor thought there was an element of "hysterical" reaction.

The last note that makes any reference to this incident is from Dr. Guzman, another neurologist, who diagnosed a left thoracic inlet syndrome in the spring of 1981. There is a reference to the possibility of another operation (presumably to alleviate the thoracic inlet syndrome) but I received no further evidence concerning Mrs. Nesrallah's difficulties prior to the second incident. Given the severity and duration of her complaints it is improbable that they had completely resolved prior to the next incident.

In the spring of 1985, Mrs. Nesrallah was injured while a passenger on a bus. She began to see a new family physician, Dr. Esdaile, shortly thereafter. Her initial complaints related to her right foot. In the ensuing months her complaints broadened to encompass most of the right side of her body. Her principal complaints were of right shoulder and low back pain. Approximately a year after the accident she began to complain of jaw pain and was diagnosed with tempomandibular joint dysfunction (TMJ).

Diagnostic imaging revealed the existence of mild degenerative changes in her lumbar spine that were not out of keeping with her age, and which may have contributed to her low back pain. Mrs. Nesrallah told a number of doctors that she feared that this would lead to paralysis. Likewise she had a condition described as a "dropped kidney" which she was convinced, was affecting the blood flow to her head, was cancerous and caused pain to her right side. The medical reports filed at the hearing suggest that none of these outcomes was possible.

Like after the tonsillectomy, Mrs. Nesrallah saw numerous specialists. By 1992, approximately seven years after the accident, she had seen approximately 35 different doctors.

Mrs. Nesrallah continued to see her psychiatrist periodically in the late 80s and early 90s. Dr. Sokolowska described her as a profoundly sad woman who saw herself as a victim and an invalid. He also described her as manipulative. He questioned whether she would recover until the legal matters arising from the accident were concluded. Dr. Sokolowska found no evidence of thought disorder or psychomotor retardation.

In a report prepared in April 1991, Dr. Esdaile, her family physician, prepared a medico-legal report in which he stated that there was a lack of significant reproducible physical findings. He attributed Mrs. Nesrallah's suffering to psychological difficulties.

Mrs. Nesrallah was not successful in the litigation. She blamed the outcome on her doctors whom she stated failed to support her claim and "lied." Mrs. Nesrallah changed family doctors shortly after the litigation.

Mrs. Nesrallah continued to see numerous doctors throughout 1994 and 1995 and into 1996. She also regularly attended physiotherapy and indicated to various doctors that she exercised regularly. There also seemed to be a change with a shift in emphasis to the TMJ problem, and the emergence of complaints of pain to her left side that Mrs. Nesrallah attributed to the TMJ.

In addition to the stresses brought on by her physical complaints, Mrs. Nesrallah was coping with the fallout from business troubles. Mrs. Nesrallah operated a dress boutique. In 1992 the landlord took possession of the premises and seized her merchandise. The matter went to trial in the fall of 1995. Mrs. Nesrallah recovered her possessions and attempted to reopen the boutique in a new location in early 1996. The venture was unsuccessful and Mrs. Nesrallah closed the business in the spring, a few months before the accident we are concerned with.

With the closure of the boutique, Mrs. Nesrallah shifted her attention to a new project. She hoped to obtain a contract from either the federal or local government to develop and implement a "fashion curriculum" for use in Canadian schools. To that end, Mrs. Nesrallah prepared a proposal which she mailed out to various federal cabinet ministers and local officials. Mrs. Nesrallah testified that at the time of the accident she was "flying" because of the overwhelmingly positive response. However, this testimony must be questioned in the face of the available documentation. First, the proposal was not mailed out until approximately a month before the accident and none of the response letters filed by Mrs. Nesrallah predate the accident. Second the responses are merely polite acknowledgements. Mrs. Nesrallah did not file any letters suggesting that any government official was interested in implementing the proposal. Some of the doctors noted at various times that Mrs. Nesrallah can be somewhat grandiose in her thinking. This would appear to be an example.

As noted above, in addition to these activities, Mrs. Nesrallah was taking an English course through the continuing education program of the local school board.

The 1996 Accident and its Aftermath:

As noted above when Mrs. Nesrallah was struck by the passing vehicle, she was assisted by a neighbour who comforted her and gave her a glass of water. Mrs. Nesrallah lived a few blocks away from the scene of the accident. She was able to walk home unescorted. She then called her sister, Helen Monsour, who drove her to the emergency ward of the local hospital.

Mrs. Nesrallah testified that there was extensive bruising to the left side of her body, but that much of it was "inside" and she was told that it would take a long time for her to recover. This is not borne out by the medical records. The emergency department record does show that the left elbow was bruised, swollen and tender, but there is no mention of internal damage and the x-rays were negative.

Mrs. Nesrallah had a strange episode about a month later when she claimed to have severe pain throughout the left side of her body, and trouble breathing. She was taken to hospital by ambulance where the diagnosis was "musculo-skeletal pain secondary to mva." There is a note in the margin that Mrs. Nesrallah is a "bizarre patient."

In the weeks following the accident, Mrs. Nesrallah was cared for by a neighbour, Mrs. Jackie Kabbouchi, who occupied an apartment in the same building. A handwritten diary of sorts, apparently prepared by Mrs. Kabbouchi, indicates that she attended upon Mrs. Nesrallah daily for approximately a month and a half, doing such chores as washing, cooking and accompanying Mrs. Nesrallah to the store.

A review of the available medical records for visits in the first few months indicates that Mrs. Nesrallah was complaining of pain on the left side. The principal areas of complaint were the shoulder, arm and rib cage. Mrs. Nesrallah began to use a sling. Mrs. Nesrallah had been attending physiotherapy at the time of the accident, for her previous complaints. This continued but did not appear to afford much assistance.

A review of her family physician's notes indicates that she often referred to her troubles in very dramatic terms such as being "paralysed." But at the same time she spoke of doing home exercises, yoga and walking extensively.

The evidence concerning what became of Mrs. Nesrallah's fashion curriculum project is somewhat contradictory. Mrs. Nesrallah testified that she had to abandon her proposal because of her injuries. However, the "papers" she filed contains a copy of the proposal that postdates the accident, and about half of the letters submitting the proposal also postdate the accident. Mrs. Nesrallah testified that she merely signed letters and that no further substantive work was done. In the absence of any documentation to suggest that the project was approved by any government agency, I find that Mrs. Nesrallah's project failed because of a lack of outside interest, rather than because of Mrs. Nesrallah's physical limitations.

It would appear that Mrs. Nesrallah was able to finish the English course, including undertaking an oral presentation in mid July.

An orthopaedic examination was conducted at the Insurer's behest in January 1997, approximately eight months post accident. Mrs. Nesrallah's complaints were still left-sided pain and focused on the left shoulder and arm, and chest wall. Dr. M. Baxter reported that on examination these areas were extremely sensitive to touch and she had limited use of her left arm which was in a sling. The doctor noted that both the functional limitations and sensitivity were inconsistent with casual observations made during the course of the examination. Mrs. Nesrallah reported to the doctor that she was capable of light housekeeping and cooking, and that she could drive by steering with her right hand. Dr. Baxter opined that her present condition could not be explained on the basis of an orthopaedic or musculoskeletal condition.

The Insurer's Medical Exam was followed up by a multidisciplinary DAC assessment conducted over three days in March 1997. The assessment was comprised of a medical examination by a physiatrist, a psychological examination, an occupational therapy evaluation and a functional capacity evaluation.

Mrs. Nesrallah indicated to the physiatrist that she could do light house cleaning primarily using her right hand, but could not do heavier chores such as vacuuming and cleaning floors and windows. She complained of left-sided pain in the shoulder, arm, chest wall, and leg, but the doctor could find little objective evidence on a musculoskeletal or neurologic examination. The doctor was concerned about the possibility of an underlying psychiatric disorder and suggested the possibility of a "somatotization disorder with the possibility of conversion."

Mrs. Nesrallah complained to the occupational therapist of the same physical limitations as expressed to virtually all medical practitioners. However, the therapist noted discrepancies between Mrs. Nesrallah’s self-professed limitations and her level of functioning within the apartment. The therapist reviewed the activities of daily living with Mrs. Nesrallah and found that she was independent in most areas. Mrs. Nesrallah reported that she could do light cleaning, and was independent in self-care and cooking. She expressed trouble with vacuuming, cleaning the bathtub and making her bed, and cleaning the oven. However, the therapist found the apartment clean and tidy with no evidence of dust or spots on the floor. Mrs. Kabbouchi only cleaned the apartment for a couple of months and there was no evidence that anyone else assisted Mrs. Nesrallah. In these circumstances, the occupational therapist’s observation suggests that Mrs. Nesrallah was capable of completing all of the cleaning without assistance.

The functional capacity evaluation was virtually worthless because Mrs. Nesrallah complained that pain stopped her from finishing most of the assigned tasks.

One of the most interesting reports was prepared by the psychologist, Dr. Buchanan. He found Mrs. Nesrallah’s conversation 'quite remarkable" in that she would provide quite irrelevant responses to questions. He reported that her behaviour was underlined by a very confused and loose thought disorder. He contrasted this with the findings reported by Dr. Sokolowska, who consistently reported that there was no evidence of thought disorder. Dr. Buchanan concluded that her condition was worsening and that she has some 'rather significant psychiatric problems." Dr. Buchanan felt this disorder was unrelated to the accident. He did, however, conclude that her psychiatric condition was perpetuating all of her complaints and that she would continue to complain of various aches and pains in the future.

Dr. Buchanan answered the specific question 'Does Mrs. Nesrallah suffer a partial inability to carry on a normal life as defined in the SABS, due to an impairment resulting from the above noted accident?" in the negative. It is clear that this answer was based upon his conclusion on the causation issue. It is also clear that he was satisfied that she suffers from a psychological impairment. What is left unanswered is whether or not, irrespective of causation, Dr. Buchanan concluded that the impairment was sufficiently severe to render Mrs. Nesrallah substantially disabled.

On the strength of these reports the Insurer terminated benefits effective April 29, 1997.

Dr. Buchanan's prediction that Mrs. Nesrallah would continue to rely upon the medical profession and to complain of various aches and pains, has proven correct. Mrs. Nesrallah has continued to see numerous physicians and her complaints have continued unabated. However, most of the doctors remain unable to find any physical explanation. Dr. L. Sitwell, the neurologist she has been seeing since 1992 has continued to report that he could find no neurological explanation for her symptoms. Likewise, neither Dr. Germain or Dr. Brunet could find any orthopaedic basis for the complaints.

Dr. Zaremba has continued to see Mrs. Nesrallah on a regular basis, but his notes are not particularly supportive of her claim. He has numerous notes both before and after the 1996 accident which refer to his concerns about her emotional stability. When she has approached him about signing disability certificates he suggested that she speak to the specialists.

In the summer of 1997, Mrs. Nesrallah fell and sprained her ankle. Notwithstanding an orthopaedic opinion that it was a minor sprain, Mrs. Nesrallah used a cane for many months after the fall. In addition, she began to complain about right-sided shoulder and arm pain shortly thereafter. Mrs. Nesrallah testified that after the fall she was unable to care for herself, and spent a number of months at her brother's house.

Mrs. Nesrallah asked Dr. Zaremba to certify that the fall was attributable to the 1996 accident. Dr. Zaremba refused, noting that Mrs. Nesrallah has had trouble with her balance dating back many years. I find that the fall and her right-sided complaints are unrelated to the 1996 accident.

The strongest evidence in support of Mrs. Nesrallah's claim comes from the reports of Dr. Thompson, a rheumatologist who has been treating her since 1992. Unlike most of her other doctors, he does not suggest that her complaints are largely psychosomatic. He diagnoses her condition as being a "myofascial pain syndrome." In his two most recent reports, dated September 1998 and May 1999, he indicates that her prognosis is uncertain but that he does not expect improvement in the short or medium term. However, Dr. Thompson's reports focus very little time on function, which is the basis for weekly benefits. Dr. Thompson's principal comment related to function is that "home care would be helpful for this lady as her pain is reportedly worsened with physical activity."

I am uncertain as to the course of Mrs. Nesrallah's academic pursuits after the accident. She apparently finished the English course she had started before the accident. The documentation suggests this was a Grade 12 course. Mrs. Nesrallah testified that after finishing this course she was tested at Carleton University and they arranged for her to take a further English course. Mrs. Nesrallah did not present any documentation in relation to this course, but testified that she was unable to complete it because she could not concentrate. It would appear that instead of returning to this English course, Mrs. Nesrallah enrolled in the fall of 1998, for two second year psychology courses. The lectures were taped and broadcast over a local television station. In November, Mrs. Nesrallah complained to Dr. Thompson that she was in too much pain to write the exams. Dr. Thompson signed a three-line script that Mrs. Nesrallah used to avoid writing the exams. I heard no further evidence concerning the second term of the course, and presume that Mrs. Nesrallah withdrew.

In addition there is a written note on a Confirmation of Registration form issued by the University in the fall of 1998, referring to two law courses for the winter term. Mrs. Nesrallah has made reference to law courses to a number of doctors but I heard nothing about these courses during the hearing. Nothing in Mrs. Nesrallah's academic records would suggest to me that she was ready for any of these courses.

Interestingly, Dr. Sokolowska authored a brief note in January 1999, in which he indicates that on her last visit she was again sad, but contrary to the opinion of the DAC psychologist, he found no thought disorder.

Mrs. Nesrallah testified that more recently she has been spending much of her time at her sister's house. She testified that she usually eats dinner, and sometimes lunch with her sister's family. This was corroborated by Mrs. Monsour who testified that Mrs. Nesrallah will not eat if she does not feed her. I note that Dr. Zaremba expressed concerns about Mrs. Nesrallah's eating habits before the 1996 accident.

Mrs. Nesrallah testified that she usually walks to her sister's house and then gets a lift home. Mrs. Nesrallah admitted to driving in the spring of 1997, but stated that she no longer drives. I was not told when she stopped, or given any explanation as to why she had to stop. Mrs. Nesrallah has not satisfied me that any driving impairment is attributable to the 1996 accident.

In the opening portion of these reasons, I noted that I approached Mrs. Nesrallah's uncorroborated testimony with caution. In addition, the references to manipulation and the numerous discrepancies noted by Mrs. Nesrallah's own treating physicians and the DAC team suggest that conscious exaggeration must be considered as an element of her presentation. This pattern is evident at least as far back as the litigation relating to the 1985 bus accident. However, her continued complaints after the litigation arising from that accident had concluded, suggesting that all of her complaints cannot be related to conscious exaggeration associated with a desire for financial gain. I have no hesitation in finding that even accounting for conscious exaggeration, Mrs. Nesrallah continues to suffer from a variety of aches and pains. With the exception of Dr. Thompson, there is virtually nothing in the medical documentation to support the conclusion that these troubles can be explained on the basis of physical findings. Most doctors attribute her ongoing difficulties to psychological causes. I cannot ignore the overwhelming weight of evidence and find that most of Mrs. Nesrallah's symptoms can only be explained on the basis of psychological difficulties.

Entitlement to Weekly Benefits:

Claimants falling into the "other disability category are entitled to weekly benefits for 104 weeks if they are able to establish that they suffer a "partial inability to carry on a normal life."

That term is defined in section 2 of the Schedule in the following manner.

For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

I have highlighted the words "substantial inability" to emphasise that it is not any inability that will suffice, but that rather the legislature intended the benefit to be owing only to those individuals whose pre-accident activities are substantially impaired. Where one of the elements, such as household activities encompasses a number of tasks, the group of tasks must be examined as a whole. If the evidence establishes that the individual is substantially unable to complete the collective activities, she will be entitled to a benefit.

The six elements listed in section 2 are to be read disjunctively. See Dhaliwal and Gore Mutual Insurance Company (June 22, 1995, OIC A-011188) and Patrick and Peel Mutual Insurance Company (August 26, 1998, FSCO A96-000478). Accordingly I examine each separately.

(a) Personal Care Activities:

Mrs. Nesrallah reported to the DAC team that she is largely independent in personal care. She may have some residual trouble with tasks that require raising her arms above her head, but these few difficulties do not amount to a substantial inability. The claim cannot succeed on the basis of a substantial inability to engage in personal care activities.

(b) Mobility Activities:

For a period of time after Mrs. Nesrallah's fall in 1997, her ability to walk was impaired. I have already ruled that this event is unrelated to the 1996 motor vehicle accident and accordingly cannot form the basis of a successful claim. In Patrick, supra, I ruled that an inability to drive could, in appropriate circumstances, satisfy the "mobility" element of section 2. However, I have already ruled that if Mrs. Nesrallah is incapable of driving, it is unrelated to the 1996 accident. The claim cannot succeed on the basis of a substantial inability to engage in mobility activities.

(c) Household Activities:

Mrs. Nesrallah told the occupational therapist who was part of the DAC team that she was capable of most of the cleaning in her apartment, though she claimed difficulties with some of the heavier tasks. I have expressed doubt about whether or not Mrs. Nesrallah is truly unable to complete these tasks, but even if she were, these limitations would not, given the wide range of household tasks that she is capable of performing, amount to a "substantial inability." Mrs. Nesrallah claims that her present condition is worse and that she can do less. Her sister testified that she thought that Mrs. Kabbouchi was cleaning Mrs. Nesrallah's apartment. In fact Mrs. Kabbouchi has not been helping Mrs. Nesrallah for years. I find that Mrs. Nesrallah has continued to clean her apartment unassisted.

Mrs. Nesrallah now claims that she is incapable of preparing her meals and eats many of them at her sister's home. Mrs. Nesrallah's ability to engage in self-care and household chores is inconsistent with her claim that she is physically incapable of preparing meals. There may be other explanations for any eating disorder that exists. Certainly the pre-accident records of Dr. Zaremba express concerns about her eating habits. It would also seem likely that there is a social aspect to Mrs. Nesrallah's habits. She lives alone, she is unhappy, and feels victimized. She has been welcomed into her sister's home and it is not surprising that she wishes to spend a significant amount of time there.

This claim cannot succeed on the basis of a substantial inability to carry on household activities.

(d) The Exercise of Cognitive Powers:

Dr. Buchanan, the psychologist who performed the DAC assessment, was of the view that Mrs. Nesrallah was "very clearly confused," and that her behaviour was underlined by a "loose thought disorder." Dr. Buchanan reached this conclusion without the benefit of neuropsychological testing (which was not administered), or the MMPI test (which Mrs. Nesrallah indicated she was incapable of completing). Mrs. Nesrallah's treating psychiatrist, Dr. Sokolowska, has opined both before and after Dr. Buchanan's assessment that there is no evidence of a thought disorder. I prefer the opinion of Dr. Sokolowska who has had the benefit of seeing Mrs. Nesrallah over many years. In any event Dr. Buchanan thought that the disorder was unrelated to the accident.

Mrs. Nesrallah has mentioned that she cannot study because her right eye hurts. She attributes her eye troubles to having to sleep on her right side. There is no medical opinion to substantiate this view and I reject it.

Mrs. Nesrallah has also complained that she cannot study because of generalized pain. As noted above, Dr. Thompson authored a note in the late fall of 1998, indicating that Mrs. Nesrallah was in too much pain to write her exams. It is a very brief note and there is no discussion as to why Mrs. Nesrallah was capable of completing her English course immediately after the accident, but was later incapable of completing other studies. In the circumstances, I place very little weight on Dr. Thompson's opinion on this matter. In addition, I note that the wording in the Schedule refers to the activities the person was engaged in before the accident. At that time, Mrs. Nesrallah was taking a single course as part of an adult education program. The courses Mrs. Nesrallah was incapable of completing were second year university courses. The Schedule should be interpreted liberally and in my view it would be appropriate to recognize an incremental increase in a student's workload such as from one year to another, or even from high-school to university. However, as noted above, nothing in Mrs. Nesrallah's records suggests that she was ready to take on two or more second year university courses. In the absence of more compelling evidence, I am not prepared to find that Mrs. Nesrallah’s inability to complete the university courses is attributable to the 1996 accident. This claim cannot succeed on the basis of an inability to engage in activities that require the exercise of cognitive powers.

(e) The Ability to Control Emotions or Behaviour:

Mrs. Nesrallah is very clearly angry and upset with the Insurer. She is also profoundly sad, and sees herself as a victim. However, her own doctors were concerned with her emotional stability for many years before the accident.

There is often a blurry line between an individual who, because of their psychological make-up is prone to an exaggerated response to a physical insult (a thin-skulled applicant), and a person whose ongoing symptoms are better attributed to their pre-existing psychological condition. In every case there will be an interaction between the underlying condition and the superimposed insult, and that latter will undoubtedly serve to exacerbate the person’s psychological difficulties. However, in this case, I am satisfied that Dr. Buchanan is correct when he opines that her pre-existing psychiatric problems are 'undoubtedly perpetuating all of her complaints" and that her psychiatric problems are not attributable in any significant fashion to the motor vehicle accident. Mrs. Nesrallah’s claim cannot succeed on the basis of a substantial inability to engage in activities that require the control of emotions and behaviours.

(f) Communication Abilities:

To the extent that communication abilities are linked to cognitive abilities or emotions, the claim cannot succeed for the same reasons as set out in paragraphs (d) and (e). The only other basis mentioned by Mrs. Nesrallah was an inability to write. This is linked to her right-sided difficulties which I have already ruled are not attributable to the accident in question.

Mrs. Nesrallah's claim cannot succeed on the basis of a substantial inability to engage in activities that require communication abilities.

Conclusion on Weekly Benefits:

I have no hesitation in finding that Mrs. Nesrallah continues to suffer from a variety of ailments. However, the Schedule does not compensate for pain and suffering. It provides a benefit where the limitations imposed by the injuries sustained in the accident interfere with the person's pre-accident level of functioning to the point where it can fairly be said that she is substantially disabled. In Mrs. Nesrallah's case, an examination of her condition does not justify the conclusion that the limitations attributable to the accident have resulted in a "partial inability to carry on a normal life," as that term is defined in the Schedule.

Housekeeping and Attendant Care Expenses:

Section 55 of the Schedule provides for payment of additional expenses incurred by the insured person for housekeeping expenses. At mediation, the Insurer agreed to pay a portion of the expenses demanded by Mrs. Nesrallah for the period covering June 1996 to September 1996. As discussed above in the "Weekly Benefits" portion of this decision, there was no evidence to suggest that Mrs. Nesrallah had anybody helping her with housework after September 1996 and I am satisfied that she was capable of performing all of her normal tasks without assistance. I appreciate that the eligibility requirements for weekly benefits and housekeeping benefits are not the same, and that a person who has difficulty performing certain tasks, but who falls short of establishing a "substantial inability" to perform her usual household activities, may nevertheless be entitled to a housekeeping benefit. In this case the principal independent evidence supporting Mrs. Nesrallah's claim is a very brief note from Dr. Thompson who suggests that assistance is merited because activity causes pain. Unfortunately, Dr. Thompson did not testify and I received little support for his conclusion. Nor is there even any suggestion as to how much or what type of help he thought Mrs. Nesrallah needed.

To my mind, Mrs. Nesrallah has not satisfied the burden on her of establishing that she reasonably needs this form of assistance.

As noted earlier, on the last day of the hearing, Mrs. Nesrallah tendered a two-page account apparently prepared by her sister on May 19, the day after she had testified. The first page relates to the time Mrs. Monsour has spent driving her sister back and forth between the sisters' homes, the cost of feeding her sister, and undefined trips in her car. The period identified is from 1997 to 1999 and appears to refer to the fall that injured Mrs. Nesrallah's ankle.

The time frame is inconsistent with the other evidence, which suggests that Mrs. Nesrallah was not attending daily at her sister's home until sometime in 1999. In addition, Mrs. Nesrallah has not satisfied me that any driving impairment is attributable to the 1996 accident. On this basis, the claim for transportation fails.

The cost of the additional food consumed by Mrs. Nesrallah is not compensable under the attendant care provisions, and in any event, I ruled in the "Weekly Benefits" section that any eating disorders are not attributable to the accident.

The second page of the account deals with four occasions when Mrs. Monsour took her sister to hospital. The emergency records of the Ottawa General Hospital reveal that Mrs. Nesrallah attended at the emergency department three times in the two months following the accident. Mrs. Monsour's account indicates that she spent a total of 12 hours over the course of these three visits, and that she is seeking $120 inclusive of the parking and mileage charges. This benefit could be considered under either the attendant care provisions, on the basis that she was there to care for and comfort her sister while she waited in the emergency department, or alternatively under section 53 as an expense incurred by a relative visiting the insured person during their treatment. I allow this modest claim. The fourth visit related to the fall in 1997 and for the reasons stated above, is not compensable.

As this last claim was not submitted until the last day of the hearing, the award does not attract interest pursuant to section 68.

Prescription Expenses:

Mrs. Nesrallah tendered two documents in support of her claim for reimbursement of prescription expenses. The first is a note from a pharmacy. It states that since the accident, Mrs. Nesrallah has been purchasing calcium, vitamin C and vitamin E at the rate of about $25.75 per month. The second is a note from Dr. Zaremba stating that since the accident she has been taking vitamin C, vitamin E, iron and calcium. This latter note does not state that she requires these common supplements because of the accident. In the absence of such evidence, this claim fails.

Conclusion:

Mrs. Nesrallah has failed to establish entitlement to further weekly benefits, housekeeping expenses, or prescription expenses.

Mrs. Nesrallah is entitled to $120 representing the expenses incurred by her sister in attending with her at the hospital.

EXPENSES:

If the parties cannot agree on the issue of expenses I may be spoken to.

September 23, 1999

Stewart McMahon Arbitrator

Date