Neutral Citation: 2000 ONFSCDRS 147

FSCO A99-000941

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KIFAH BOULBOL

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Fred Sampliner

Heard:

May 16, 2000, in Windsor, Ontario.

Appearances:

Tiffany MacDonald for Mrs. Boulbol

Peter Festeryga for Economical Mutual Insurance Company

Issues:

The Applicant, Kifah Boulbol, was injured in a motor vehicle accident on February 2, 1997. She applied for and received statutory accident benefits from Economical Mutual Insurance Company ("Economical"), payable under the Schedule.¹ Economical denied Mrs. Boulbol's initial entitlement to weekly disability benefits and refused her claim for damaged clothing and personal items. The parties were unable to resolve their disputes through mediation. Mrs. Boulbol 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:

1. Is Mrs. Boulbol entitled to weekly disability benefits?

2. Is Mrs. Boulbol entitled to $4,170 as reimbursement for her and her family members' damaged clothing, glasses and watch?

Result:

1. Mrs. Boulbol is not entitled to weekly disability benefits.

2. Mrs. Boulbol is entitled to $175 as reimbursement for the family's clothing and personal items.

EVIDENCE AND ANALYSIS:

Mrs. Boulbol was married with five children at the time of the accident. The seven family members were returning to Windsor from a party in Leamington when their van was struck by another vehicle. Their car spun around and stopped in a ditch. An ambulance took the family members to hospital from the accident scene. Everyone was released that evening. The van was written off as a total loss.

Mrs. Boulbol claims to suffer back, neck and shoulder pain, fatigue and heart problems as a result of the accident. She claims that her accident injuries have left her completely unable to lead a normal life, and that in accordance with section 12 of the Schedule, she is entitled to $185 per week commencing six months after the onset of this disability.

Mrs. Boulbol's Evidence:

Mrs. Boulbol testified that she was frightened for the safety of her children immediately after the accident. She did not describe any serious physical injuries. Mrs. Boulbol stated that her dress was ripped and muddy from exiting the van in the ditch.

Mrs. Boulbol testified that since the accident she feels pressure in her chest, and she has sharp pains and heaviness on the left side. Mrs. Boulbol says she often feels she is dying. She takes Tylenol 3 and heart medications.

Mrs. Boulbol testified that although she had heart palpitations before the accident, the condition did not bother her. Mrs. Boulbol did not describe her pre-accident activities of normal life, other than saying she was happy and enjoying her family. I primarily rely on other evidence to establish her pre-accident activities.

Mrs. Boulbol testified that since this accident, her pain, fatigue and heart palpitations have prevented her from vacuuming, dusting, doing laundry and preparing meals. She stated it is difficult to effectively communicate with either her children or husband and that her relationship with them has deteriorated since the accident. Mrs. Boulbol's evidence is that she is limited to about three hours sleep a night, cannot shower, wash her hair, dress or put on makeup without her daughter's help, but she is able to brush her teeth and go to the toilet on her own.

Mrs. Boulbol stated that she rarely leaves the house other than to occasionally shop or go to a movie. She visited her native Lebanon in 1997 and again in 1999, but infrequently left her relative's apartment.

Aside from medication, Mrs. Boulbol has not undergone any active or passive treatment for her neck, shoulder and back injuries she claims to have received in this accident.

Mrs. Boulbol also testified that she suffered injuries to her head and neck in a 1989 motor vehicle accident. She stated that the injuries caused her depression and chronic pain for four to five years afterwards, but maintained that she was fully recovered for the two years prior to this accident.

Mrs. Boulbol's husband did not provide much detail about his wife's pre- or post-accident activities. He stated that the children and he have taken care of Mrs. Boulbol since the accident, and that she tries to do her best, but her neck/back pain, headaches and chest pain became much worse. His evidence that her symptoms increased significantly after the second accident implies that she had not in fact fully recovered from her 1989 injuries at the time of the second accident, contrary to his wife's testimony.

The information Mrs. Boulbol provided to Economical shortly after her 1997 accident also indicates that her pre-accident activities were quite limited. In a February 13, 1997 interview with an Economical adjuster, less than two weeks after the accident, Mrs. Boulbol signed an initial claim intake form, where the adjuster listed her symptoms. The adjuster noted that before and after the accident her children did all the house cleaning, and her eldest daughter completed the cooking, kitchen cleaning and laundry. She stated that her personal hygiene activities were the same after the accident as beforehand.

Other than stating that she could not recall the adjuster asking her questions about her activities, Mrs. Boulbol did not offer any explanation for the conflict between her evidence that she had fully recovered from her previous accident and her initial statement to Economical about her activities. Equally significant, Economical's evidence that Mrs. Boulbol's pre-accident activities were limited is supported by the undisputed evidence that Mrs. Boulbol was receiving Canada Pension Plan disability benefits well before the 1997 accident.

Medical Evidence:

The clinical notes of Mrs. Boulbol's family physician, Dr. Robert McKay, commence a little over a year prior to the accident. Contrary to Mrs. Boulbol's oral evidence, his December 1995 notes show that she complained of headaches, dizziness, jaw pain and earache.

At that time, Dr. McKay's notes show that Mrs. Boulbol's condition had not improved since the 1989 car accident and that her children were helping with the housework. The evidence that Mrs. Boulbol was taking Amitriptyline for depression and Tylenol 2 for pain a year and a half before the 1997 accident also underscores Dr. McKay's description of her limited pre-accident activities.

In the fall of 1996, Dr. McKay notes that Mrs. Boulbol still had severe headaches, but she was now experiencing burning neck pain. Along with her chest complaints, she had an irregular heartbeat. He wrote in early 1997 that Mrs. Boulbol felt numbness on her left face and arm.

Mrs. Boulbol went to Dr. McKay two days after the 1997 accident, complaining of severe headaches, neck, shoulder and back pain. He referred her to a cardiologist in May and also signed a statement for Economical that month, agreeing that her functional status in the home had not changed since the accident.

Dr. McKay's evidence of Mrs. Boulbol's pre-accident functional status is consistent with Dr. John Fulop, a cardiologist. In 1989, Dr. Fulop reported that Mrs. Boulbol had irregular heartbeats, sometimes severe. He notes in 1993 that Mrs. Boulbol spent most of the day in her room and that her eldest daughter did most of the housework.

Dr. Fulop's records show that Mrs. Boulbol does not have heart disease, a heart condition or other physiological heart abnormality which could account for her irregular heartbeat. His opinion is that Mrs. Boulbol's anxiety is directly attributable to the accident, citing the temporal relationship between the definite upsurge in her symptoms immediately after the accident.

Dr. Patrick Charron is a specialist in physical medicine, who examined Mrs. Boulbol in January 2000 for Economical. He reviewed her medical records/reports, and conducted an interview with her.

Dr. Charron and Dr. Fulop agree that Mrs. Boulbol suffered no cardiac injury from the 1997 accident. Dr. Charron mentions her anxiety, anger and sense of hopelessness, suggesting that psychological factors contribute to her symptoms. However, Mrs. Boulbol did not present any expert opinion to support her disability based on a psychological impairment.

Dr. Charron limited his opinion to the relationship between Mrs. Boulbol's physical impairments and the accident. The more significant aspect of his report deals with Mrs. Boulbol's daily activities. She told Dr. Charron that before the accident she walked one or two blocks once per week, occasionally vacuumed, but mostly read. Her activities after the accident were limited to 10 minutes of walking, and she was unable to read or vacuum. Otherwise, Dr. Charron's evidence indicates that she underwent no significant change in her household activities, with her family completing almost all of the same household chores before and after the accident. Mrs. Boulbol's statement to Dr. Charron that she was vacuuming before the accident conflicts with her statement to Economical that she was not performing any house cleaning.

In February 1998, Dr. Fulop reported that medication significantly reduced Mrs. Boulbol's irregular heartbeat. While these symptoms increased under stress, Mrs. Boulbol reportedly told Dr. Fulop in November 1999 that she was experiencing only random episodes of increased pain two to four times per month. Normally she was in no great discomfort. Dr. Fulop's report confirms that the medication controlled her symptoms.

Dr. McKay's November 1999 report that Mrs. Boulbol's irregular heartbeat was not being controlled through medication conflicts with Dr. Fulop's opinion. There is no evidence to support Dr. McKay's view at that time, and I prefer the evidence of Dr. Fulop.

Dr. McKay also fails to critically review Mrs. Boulbol's limited pre-accident activities vis-à-vis her increased post-accident symptomatology in reaching his disability conclusion. Moreover, Dr. McKay's opinion that Mrs. Boulbol's anxiety and heart palpitations "were all caused by the motor vehicle accident of February 2, 1997" disregards Dr. Fulop's and his own evidence that her heartbeat was irregular prior to the accident. I have little confidence in Dr. McKay's opinion, and give it little weight.

Disability Analysis:

Mrs. Boulbol has not established that as a result of the February 1997 accident she suffered an increased level of neck/shoulder pain and headaches. I am convinced by Dr. McKay's notes that Mrs. Boulbol had long-standing neck and shoulder pain and sometimes severe headaches, and his records do not demonstrate any different level of pain persisting beyond the immediate period after the accident. My conclusion that her condition was not exacerbated to any significant degree is supported by Mrs. Boulbol's lack of treatment for her soft tissue injuries or headaches, and her continuing disability status with Canada Pension Plan.

Mrs. Boulbol's claim is primarily based on her heart condition. Dr. Fulop does not directly link the accident to her symptoms. He only says there was a definite change in her symptoms following the accident. Concurring with Dr. Fulop, Dr. Charron also gives no opinion attributing her symptoms to the accident. Thus, although there is a temporal relationship between the accident and Mrs. Boulbol's increased symptoms, there is no reliable expert opinion establishing this necessary causal link. I find that the accident did not cause or significantly contribute to Mrs. Boulbol's post-accident heart symptoms.

Even if Mrs. Boulbol was able to establish causation, I cannot rely on her testimony. Mrs. Boulbol's evidence that she was fully recovered from her 1989 injuries differs dramatically from Dr. McKay's pre-accident notes showing continuing serious symptoms affecting her function.

I prefer the accuracy of his contemporaneous notes as an accurate reflection of her pre-accident condition.

I rely on the list of Mrs. Boulbol's specific activities before and after the accident she gave to Economical and Dr. Charron. I also rely on Dr. Fulop's evidence that normally Mrs. Boulbol is not bothered by her heart irregularity, and find that with the current medication, the flare-ups of her heart symptoms have been limited to between two to four times per month since February 1998.

Based on the evidence from Dr. Charron and Economical's intake interview, I find that Mrs. Boulbol's personal hygiene and grooming did not change after the accident. I further find that the diminution of Mrs. Boulbol's ability to walk from one or two blocks per week before the accident to ten minutes is not significant because a person can normally walk a block or two in that time. Even if I accept that Mrs. Boulbol ceased limited vacuuming and dusting after the accident and stopped reading, I find that she continued to perform her personal hygiene relatively unchanged since the accident.

Section 12 of the Schedule requires that Mrs. Boulbol establish that the accident caused her to suffer a complete inability to lead a normal life. Prior to the accident, she led a primarily sedentary lifestyle in her room due to her pain and heart palpitations. Although her heart symptoms increased, I find that in the end result Mrs. Boulbol did not suffer a complete inability to lead her normal pre-accident life as a result of this accident. She is not entitled to weekly disability benefits under section 12 of the Schedule.

Damage to Clothing:

Mrs. Boulbol submitted to Economical a handwritten list (undated) of the family's clothing, as well as a pair of glasses and a watch that she claims she replaced due to damage from the accident. The sum total of the separate items on the list ($3,745) is substantially less than the total she claims at the bottom of it ($4,170). No evidence was presented to account for this discrepancy.

Other than the oral testimony of Mrs. Boulbol and her husband, she did not present any photographs of the damaged clothing to indicate they were beyond repair or receipts for replacement. Mrs. Boulbol did not provide the ambulance or police report from the accident scene to corroborate her claim that the family's clothing was irreparably damaged by the accident, or had to be cut off their bodies by medical personnel.

Mr. Boulbol testified that his daughter wrote the list at Economical's request, and that no one told him to save receipts. His overcoat was cut and the shoulder of his suit was ripped. He testified that Mrs. Boulbol's dress was soiled, that all the family's clothes were thrown out and that some were replaced.

Property Claim Analysis:

The evidence does not suggest any member of the Boulbol family sustained any serious injury in this accident that required their clothing be cut away. I reject the Boulbols' testimony.

While Mr. Boulbol stated that all the clothing was thrown away, he did not indicate why the rip in his suit or his cut coat could not be repaired, his wife's soiled coat/dress cleaned, and the eyeglasses and watch repaired. In his evidence, he did not discuss the necessity to dispose of the children's clothing.

I find that Mr. and Mrs. Boulbol's testimony does not demonstrate that the entire family required wholesale replacement of their outer clothing and personal items. Additionally, I do not accept the high values for many of the items without receipts.

Mrs. Boulbol has failed to present any independent evidence as an objective basis to establish her claimed property damages, repairs and replacement values. However, I am willing to accept that this collision on a rural road during the winter in all probability resulted in some soiling and modest damage to their clothing. Under section 23 of the Schedule, I am prepared to award Mrs. Boulbol $25 for cleaning and repairs to clothing for each family member, totalling $175.

EXPENSES:

The parties may apply for an assessment if they cannot agree on expenses.

August 17, 2000

Fred Sampliner

Arbitrator

Date

Neutral Citation: 2000 ONFSCDRS 147

FSCO A99-000941

FINANCIAL SERVICES COMMISSION OF ONTARIO

BETWEEN:

KIFAH BOULBOL

Applicant

and

ECONOMICAL MUTUAL INSURANCE COMPANY

Insurer

ARBITRATION ORDER

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. Mrs. Boulbol's claim for income replacement benefits under section 12 of the Schedule is dismissed.

2. Economical shall pay Mrs. Boulbol $175 for all of her claims for herself and her family members under section 23 of the Schedule.

August 17, 2000

Fred Sampliner

Arbitrator

Date

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96 and 303/98.```