Neutral Citation: 1999 ONFSCDRS 49

FSCO A97-000127

BETWEEN:

JAMIL PUTRUS

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

January 4, 5, 6, 7, 1999, at the Financial Services Commission of Ontario, Toronto

Appearances:

David F. Longley for Mr. Putrus

Ian D. Kirby for Allstate Insurance Company of Canada

The Applicant, Jamil Putrus, was injured in a motor vehicle accident on August 9, 1995. He applied for and received statutory accident benefits from Allstate Insurance Company of Canada ("Allstate"), payable under the Schedule¹ Allstate refused to pay Mr. Putrus a weekly income replacement benefit after December 26, 1995, as well as transportation and housekeeping expenses. The parties were unable to resolve their disputes through mediation, and Mr. Putrus applied for arbitration at the Financial Services Commission of Ontario² under the Insurance Act, R.S.O. 1990, c.I.8, as amended. During the hearing, Mr. Putrus withdrew his claim for physiotherapy at Downsview Community Clinic.

The issues in this hearing are:

Is Mr. Putrus entitled to weekly income replacement benefits after December 26, 1995?
Is Mr. Putrus entitled to housekeeping expenses?
Is Mr. Putrus entitled to travel expenses?

Mr. Putrus is not entitled to weekly income replacement benefits after December 26, 1995.
Mr. Putrus is not entitled to housekeeping expenses.
Mr. Putrus is entitled to $590 travel expenses.

Background

Mr. Jamil Putrus claims that as a result of the accident, he suffers from right shoulder/arm weakness, chronic pain and the effects of post-concussive syndrome, which have disabled him from his job as an assembler at a small furniture factory in Toronto.

Mr. Putrus experienced a great deal of turmoil before arriving in Canada. He was born in 1957 in a small village in northern Iraq, and left school at an early age to work on the family's farm. Drafted for two terms in the Iraqi military, he served as a guard, a fitness instructor and for six years in combat during the Iran/Iraq war. His family's farm near the Iranian border was destroyed, and the Putrus family moved to the capital. When the war ended in 1988, Mr. Putrus was released from service. The family continued to live in the capital until the Iraqi military again called Mr. Putrus into service in 1991 as a result of his country's conflict with Kuwait.

Mr. Putrus and his family chose to flee Iraq at the outset of the war. They lived in a refugee border camp near Turkey for a year, and moved to Istanbul, where Mr. Putrus worked in a furniture factory for two or three years to support the family. The Putrus family emigrated to Canada in February 1995. Shortly after their arrival in Toronto, Mrs. Putrus found employment as a farm worker, and Mr. Putrus began working for a small furniture manufacturer. Mr. Putrus was 38-years-old at the time of the accident, and had been working for approximately three months.

The Accident

On August 9, 1995, Mr. Putrus was struck by an automobile while crossing the street near his family's apartment. His body broke the car's windshield, but the ambulance report indicates that Mr. Putrus was found lying prone on the pavement, alert and talking. Mr. Putrus suffered a concussion and soft tissue injuries.

In all probability, Mr. Putrus lost consciousness for a short period, though there is no independent evidence to corroborate the length of time. The staff at York Finch Hospital concluded that Mr. Putrus lost consciousness for no more than 15 minutes and suffered one hour post-traumatic amnesia. The hospital did not conduct a Glasco coma test, which is a standardised test to determine neurological impairment after a head injury.

Mr. Putrus' right shoulder and right cheek were bruised and lacerated. Most significantly, he suffered a contusion to his right middle ear, which resulted in blood accumulation. He was discharged from the hospital after a CT head scan and x-ray findings were negative for damage.

Mr. Putrus returned to the hospital two days after the accident, complaining of headaches, dizziness, vomiting, right side pain and lethargy. He was admitted, but received no specific treatment during his one week stay. Although the records show he had loss of hearing in his right ear, later testing indicates that Mr. Putrus suffers a bilateral hearing loss.

His Job

Mr. Putrus assembled furniture between 8:00 a.m. and 4:30 p.m. Monday to Friday, with breaks and lunch. Ms. Marla Rosenfeld, an occupational therapist, met Mr. Putrus and his employer at Babylon/Julianna Furniture to analyse his work. I accept her evidence as the best description of Mr. Putrus' duties.

Ms. Rosenfeld testified that Mr. Putrus' job required moderate strength, flexion, extension, sustained and repetitive movement. Mr. Putrus loaded and unloaded raw materials from trucks. He lifted between 5 and 50 lbs, and was assisted by other employees when carrying heavy or cumbersome items such as plywood sheets and finished furniture. Mr. Putrus cut wood using a table saw, sanded parts by hand and machine, installed glass in cabinets using drills, glue and staple guns. He stained pieces and refilled the stain machines with full drums, and also performed general cleaning and maintenance. Employees moved around the small noisy shop area and changed tasks often.

Mr. Putrus'Evidence

Mr. Putrus testified that headaches are his worst problem, often occurring four days a week for up to five hours. His second most important problem arises from sensitivity to sound and light. Mr. Putrus testified that although he suffers periodic low back (four times a week for three hours), right shoulder pain (three days a week for two hours) and chest pain (two days a week for one hour), these symptoms do not prevent him from working. According to Mr. Putrus, the headaches and dizziness are debilitating, and he cannot work.

Videotape surveillance shows a markedly different behaviour from Mr. Putrus' claimed condition. During two days in February 1996 and one day in July 1998, he appears walking steadily around his neighbourhood in full stride for long periods without any apparent sign of instability, a halting gait, or the dizziness that he claims. At the hearing, Mr. Putrus denied that he could walk longer than 15 minutes. I do not accept Mr. Putrus' denial of his apparently normal abilities depicted in the video.

Mr. Putrus also testified that his job required great strength, and that he was an expert capable of five people's work. He stated that 30 people lifted him up at the accident scene, and that he was bleeding from both ears. His colourful descriptions are not supported by any reliable evidence and demonstrate his tendency to exaggerate.

Mr. Putrus also testified that before the accident he cooked meals, cleaned the apartment, and did the family laundry. However, he made statements to professionals in November 1995 and March 1996, which indicated his family was traditional. Mr. Putrus did not explain his version of a traditional family. I accept that an adult male would not perform cooking, laundry and housework in a traditional household. I find Mr. Putrus' evidence is contradictory.

Mr. Putrus testified being in hospital for two days immediately following the accident, whereas all the records indicate he was discharged from the emergency room that day. He was vague, and often unresponsive to questions during examination-in-chief and cross-examination. The evidence shows that Mr. Putrus has poor recall.

On this evidence, I find that Mr. Putrus is not reliable or accurate in his reporting of symptoms, and I do not accept his evidence. I am therefore forced to rely on the objective medical evidence in this claim.

Physical Disability;

There is no objective medical testing to support any physical disability resulting from the accident. The x-ray imaging, nerve conduction studies, CT head scan, and EMG tests were normal. A bone scan indicates increased activity in the right shoulder area, but the health experts cannot identify any specific problem.

Clearly, Mr. Putrus suffers a mild hearing loss. Dr. Andrew Reid, an ear and throat specialist at the North York Rehabilitation Centre, examined Mr. Putrus, and found he had vertigo sensation when he hangs his head to the right. Testing indicates the hearing loss is mild in both ears. Dr. Reid attributed the hearing loss to the accident, but his opinion indicates it does not interfere with Mr. Putins' normal activities.

Dr. D'Onofrio has been Mr. Putrus' family physician since the accident. He filed a health practitioner's certificate in January 1996 indicating the cervical/lumbosacral back strain caused Mr. Putrus' continuing disability. Although Dr. D'Onofrio's clinical notes show low back complaints and tension headaches, his certificate provides no analysis of the symptoms and condition in relation to Mr. Putrus' job. I give little weight to Dr. D'Onofrio's opinion.

The clinical notes of Mr. Putrus' second family physician, Dr. Patrick Safieh, records headaches, dizziness, chest pain and fatigue. His half-page report in December 1998 concludes that Mr. Putrus suffers headaches "almost daily," and experiences various chronic pain symptoms which prevent his return to "employment as a machine operator." I cannot accept Dr. Safieh's opinion not only because he did not know the Mr. Putrus' job, but his report is devoid of any underlying analysis to explain his conclusions.

A consulting physiatrist, Dr. Pierre Kirwin, diagnosed chronic pain. He examined Mr. Putrus monthly during the first half of 1996. Dr. Kirwin concluded there was nothing physically wrong with Mr. Putrus except diffuse muscle tenderness in his neck and low back. He did not determine the extent of disability. His diagnosis is lacking a disability analysis, and does not support Mr. Putrus' claim that he cannot perform his employment duties. I give little weight to Dr. Kirwin's reports.

Dr. Keith Meloff, a neurologist, found Mr. Putrus had "voluntary weakness" in his right shoulder, soft tissue pain and headaches. After reviewing the hospital records, Dr. Meloff accepted that Mr. Putrus suffered vertigo as a result of the concussion and trauma to the middle ear. He concluded that Mr. Putrus' dizziness consequentially disabled him.

Dr. Meloff did not test Mr. Putrus to determine the extent vertigo affects his abilities. Without a test, and faced with Mr. Putrus' exaggerations, general unreliability and the surveillance, I am not prepared to accept Dr. Meloff's opinion that the vertigo has any significant functional effect.

Royal Rehab reported that headaches and dizziness appeared to be Mr. Putrus' main problems. He was discharged due to poor motivation and attendance, and admitted to Ms. Rosenfeld that he went to therapy when he felt like it.

Mr. Putrus underwent two functional assessments, reaching different conclusions. Health Recovery's report, indicating minimal loss of mobility and moderately less muscle strength in the right shoulder, is consistent with the bulk of the health care evidence. A short time after Health Recovery's report, Yorkgate Rehabilitation found that all of Mr. Putrus' shoulder movements were painful, limited and weak. Yorkgate's conclusion is not supported by other expert evidence and I reject these findings.

Dr. Edward English, an orthopod at the North York Rehabilitation Centre, found no neurological deficits during his portion of a medical/rehabilitation assessment. Mr. Putrus demonstrated sensory changes, but there was no muscle wasting or loss of sensation. Dr. English did not advocate any further physical treatment, and advised Mr. Putrus to return to normal activities.

Dr. Rajka Soric, a physiatrist hired by Allstate, also testified that Mr. Putrus suffered minimal physical impairment from the accident. In her opinion, his complaints are incompatible with the injury. He had normal muscle bulk, movement, sensation, and did not show signs of dizziness when she examined him in 1995. She concluded that he exaggerates pain.

Other than the very brief opinions from Dr. D'Onofrio, Dr. Safieh and Yorkgate, the health experts do not support Mr. Putrus' contention that he suffers any serious physical disability as a result of the accident. I accept Dr. Soric's opinion that Mr. Putrus does not suffer from debilitating soft tissue injuries or vertigo.

Psychological/Emotional Disability

Attempts have been made to investigate Mr. Putrus' complaints of headaches, light and sound sensitivity, nausea and dizziness, sleep dysfunction, moodiness, fatigue, irritability, lack of concentration, forgetfulness, depression. He has consulted a number of professionals and has been to the hospital emergency room seven times in 1996 and 1997, apparently with little positive effect.

Dr. Nabil Philips, a psychiatrist, made a provisional diagnosis of organic brain syndrome, based upon Mr. Putrus' presentation of symptoms. Mr. Putrus told him that he had no memory of events between the time of the accident and his arrival in the hospital. Dr. Philips noted that Mr. Putrus had poor memory, concentration and attention. He said that Mr. Putrus' condition may have been missed due to his elementary education and language barrier, and that testing would be of limited use to objectively determine his deficits. Dr. Philips speculated that Mr. Putrus may be limited in full-time work, and that he should be observed on the job. Dr. Philips' opinion is based upon Mr. Putrus' complaints, which are not reliable without some objective tests to determine validity. Moreover, Dr. Philips fails to indicate with certainty any work disability, and his opinion is in large measure based upon Mr. Putrus' complaints.

The North York Rehabilitation Centre was unable to conduct neuropsychological testing. Dr. N. E. Morris found visual-spatial impairments, attention and orientation deficits during his initial screening in March 1995. However, the neuropsychological testing was discontinued after an hour of stressful, unproductive questioning, and the resulting report indicates that Mr. Putrus could not be reliably assessed using traditional methods. The recommended MRI brain scan was not performed, and the Centre did not measure or attribute intellectual deficits to the accident. The evidence does not indicate that Mr. Putrus suffers cognitive deficits.

Dr. Morris reports that Mr. Putrus has suffered an emotional reaction. According to Dr. Morris, Mr. Putrus is sad, frustrated and angry resulting from his inability to support his family and due to his loss of self-esteem, possibly magnified by the cumulative stress of his war service, escape to Turkey and immigration to Canada. Mr. Putrus lives separate from his wife and unmarried children now.

Dr. Morris' view of Mr. Putrus' emotional state is supported by reports from his interviews with other health care professionals. However, neither Dr. Morris or any other expert analysed the effect of Mr. Putrus' emotional reaction in relationship to his work. While I can accept Dr. Morris' opinion that Mr. Putrus has been emotionally distraught in the aftermath of the accident, the expert evidence does not indicate the type and extent of any resulting work disability.

Both Dr. Philips and Ms. Rosenfeld suggested that Mr. Putrus return for on-the-job observation to determine his disability level. It is significant that his employer was willing to accommodate reduced hours and modified duties if Mr. Putrus attempted to return to the job. At the hearing, Ms. Rosenfeld reiterated her December 1995 recommendations for a graduated return to work coupled with monitoring and appropriate physical conditioning.

Considering this evidence, I do not accept Mr. Putrus' denial that anyone told him he could return to work. Ms. Rosenfeld's report also indicates that Mr. Putrus refused to sign a consent for her to release information and speak to his employer. Clearly, Mr. Putrus was not cooperative, and his failure to heed the professional advice precluded efforts to reliably determine his work limitations.

Conclusion:

The eligibility test under section 7 of the Schedule requires that Mr. Putrus prove, on a balance of probabilities, that he suffers a substantial inability to perform the tasks of his work at the furniture factory. I find that Mr. Putrus cannot provide reliable or accurate evidence of his symptoms or disabilities, and the expert evidence does not support Mr. Putrus' claims of cognitive deficits or physical disabilities. Although he unquestionably has a mild hearing loss in both ears, the surveillance evidence and Dr. Reid indicate that it does not interfere with his normal activities. Mr. Putrus may suffer from some emotional reaction. However, there is no testing on the job to determine the extent of any disability, and I have no reliable evidence of Mr. Putrus' job limitations.

In sum, Mr. Putrus has failed to prove he suffers a substantial inability to perform the tasks of his furniture assembly job as a result of the accident. I find that he is not entitled to income replacement benefits pursuant to section 7 of the Schedule after December 26, 1995.

Though unsuccessful, Allstate's evidence indicates Mr. Putrus requires assistance in a work return. Ms. Rosenfeld recommended that Mr. Putrus should be monitored over an 8 to 10 week period on the job, and that he should be paid benefits during this period to relieve him of financial concerns. Dr. Morris recommended 6 to 8 sessions of cognitive behavioural counselling to address his adjustment difficulties as well as pain/stress management. Despite the time lapse since these recommendations were made, they merit Allstate's consideration in light of Mr. Putrus' emotional turmoil.

Housekeeping:

Mr. Putrus claims that he paid his eldest daughter $400 per month from December 1995 to December 1997 for her cooking, laundry and housekeeping, which he claimed he performed before the accident. He and his daughter testified and presented signed cash receipts for each month during that period.

Mr. Putrus' daughter, Ms. Reva Jarjess, testified she was paid up to the time of her marriage. She stated that her father did not make payments after he moved in with her and her husband in December 1996, a year after the accident. Ms. Jarjess did not explain why the signed cash receipts showed continuous $400 monthly payments through December 1997, a year after she testified that the payments stopped. Nor did Mr. Putrus explain how he could afford to pay his daughter $400 a month for housekeeping when he had no income source. I am not convinced that Mr. Putrus paid his daughter for housekeeping.

Mr. Putrus and his daughter testified that he did the family's laundry and shopping along with some cleaning and cooking before the accident. However, he made statements to Ms. Rosenfeld and another evaluator before the benefit was in dispute, that the Putrus household was traditional. I rely on the earlier statements, and find that Mr. Putrus did not perform housework before the accident.

Ms. Jarjess also testified that her mother stopped working and became a full-time homemaker shortly after the accident. It makes little sense that Mr. Putrus' daughter would do housekeeping when her able-bodied mother, the main homemaker in this traditional household, was available full time.

I find that Mr. Putrus is not entitled to housekeeping expenses claimed under section 55 of the Schedule.

Travel Expenses:

Mr. Putrus submitted $590 in taxi receipts. Allstate did not argue against these expenses, which represent Mr. Putrus' trips to St. Michael's Hospital, Dr. D'Onofrio, Dr. Meloff and Dr. Kirwin. I am prepared to overlook the discrepancies between the noted attendance and dates on the taxi receipts. I find that Mr. Putrus is entitled to $590 travel expenses under sections 36 and 40 of the Schedule.

Expenses:

Although unsuccessful, Mr. Putrus has presented sufficient expert evidence to support his claim. Allstate did not oppose Mr. Putrus' claim for expenses of the arbitration process. Thus, in accordance with previous decisions, I grant Mr. Putrus his expenses of the arbitration process.

March 29, 1999

Fred Sampliner Arbitrator

Date