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Perseverance in chronic pain case results in significant savings

John Lezemore and Adela Carrasco of DWF have recently obtained significant savings on a claim presented as a chronic pain case valued at over £1million.

Background and investigations

The claimant broke his ankle after slipping on ice in January 2013. Liability was not in issue and the defendant's insurers quickly agreed to deal with the claimant's claim.

Early medical evidence suggested that the fracture was not serious and that the claimant would recover within a few months of the accident.

However, the claimant failed to return to his work as a car salesman, claiming that he was in too much pain to be able to do so. In what is becoming an increasingly common development in large loss insurance litigation, the claimant served medical evidence containing a diagnosis of complex regional pain syndrome as an explanation for ongoing pain and functional restriction, even in the absence of hard signs.

The claimant then gave up work altogether and, on the basis that he would never be able to return to work, advanced a claim for loss of earnings together with ongoing care and assistance for life. What should have been a relatively straightforward injury now had the potential to exceed £1million in damages and costs.

Based on our experience of dealing with this type of case, and the nature of the diagnosis and prognosis, we took the decision to put the claimant under surveillance and to obtain our own medical evidence. However, it soon developed into an uphill battle to challenge the claim being advanced.

Initially, the surveillance showed the claimant mobilising in a manner consistent with the medical evidence he had served. He was very slow moving and used crutches.

With that in mind and given the evidence disclosed up to that point we recommended, and the insurers agreed, to make a fairly significant Part 36 offer of £125,000 early on in the proceedings.

This was unacceptable to the claimant who was looking for a substantially increased sum and he then went on to disclose new medical evidence concluding that he had also developed "fibromyalgia" as he claimed he was now experiencing all over body pain.

During the process of disclosure the claimant failed to disclose a number of relevant documents that the defendant had requested. We were aware that the claimant was suffering from a number of additional life stresses, including being on a witness protection programme and being in considerable debt. The documents relating to these events were relevant to the issue of causation but the claimant refused to disclose them.

On the issue of medical evidence, the defendant had permission to rely on evidence from orthopaedic, psychiatric, rheumatology and pain experts. Whilst the claimant was prepared to attend examinations by the orthopaedic and psychiatric experts, he refused to be examined by the rheumatologist and pain expert. The claimant gave numerous reasons for his refusal, even when he was offered home visits by the relevant experts but none were considered very good explanations given the sums, the claimant was seeking for damages.

In our view the reasons for the claimant's refusal were inadequate and contributed to our suspicions about the case generally. It will be recalled that according to the DSM guidelines*, a "lack of co-operation during the diagnostic evaluation and in complying with the prescribed treatment regimen" when seen in a medicolegal context can itself be a sign of "malingering".

Throughout this time, and because of our ongoing suspicion, we kept the claimant under surveillance and he was eventually seen driving to and walking around a luxury car showroom. Although he was seen walking for only about ten minutes or so, crucially, and contrary to his disclosed evidence, he was not using a crutch which he had previously reported he could not manage without.

In the meantime, the deadline for service of medical expert evidence was fast approaching. Notwithstanding the claimant's refusal to be examined by the defendant's rheumatologist and pain expert, the claimant would not consent to an extension of time for service of the evidence and would not agree to a stay. This remained the case even when faced with our intention to apply to court for unless orders and costs.

When the day for disclosure of medical evidence arrived, the claimant was probably expecting that the defendant would not be in a position to serve any rheumatology or pain evidence. However, we had commissioned desktop reports in these disciplines which we were able to disclose, together with the surveillance evidence, to ensure compliance with a strict timetable.

The defendant's experts did not believe the claimant had either CRPS or fibromyalgia and, having seen the surveillance of the claimant in the car showroom, they considered that the claimant was not disabled as he had claimed. They further concluded that they could conceive of no good medical reason why the claimant should not be able to work and there were also no care requirements.


* The 5th edition of Diagnostic and Statistical Manual of Mental Disorders (DSM–5) was published in 2013. It is a tool published by the American Psychiatric Association and used by clinicians to diagnose and classify mental disorders. Read more about DSM-5

Settlement

Given the claimant had still not been examined by two of the defendant's experts and as there were disclosure issues outstanding, we applied to the court for orders for specific disclosure, substitution of medical experts and a stay in the event that the claimant still refused to be examined. We prepared a detailed witness statement in support explaining the claimant's failure to cooperate and the weaknesses in the substantive claim.

The claimant vigorously opposed the application asserting that the defendant should not have permission to rely upon its surveillance evidence and serving a witness statement in reply to the surveillance, trying to explain away what could be seen in the footage.

Our application was successful. The surveillance was admitted into evidence and the court ordered the claimant to provide disclosure and to attend medical appointments with the defendant's new experts or face a stay and pay cancellation fees in respect of the previous wasted medical appointments.

Shortly after this hearing, the claimant accepted the defendant's original Part 36 offer out of time. The defendant therefore has an order for the claimant to pay the defendant's costs, essentially of the entire proceedings given the early stage at which we made the Part 36 offer.

Comment

Chronic pain cases are rarely straightforward. All of the available evidence needs to be carefully examined, to compare the claimant's alleged level of disability and the pleaded case with the picture that emerges from the documentary evidence. Legal advisers need to have the flexibility to react to the changing dynamics of the case, and also the perseverance - in this case with surveillance and medical evidence - to achieve the desired result. Meaningful and early Part 36 offers can be worth their weight in gold in "chronic pain" cases.

The CFA in this case pre-dated the April 2013 reforms so the QOCS provisions were not yet in force. Neither of course was section 57 of the Criminal Courts and Justice Act 2015. This meant there was no opportunity to raise an allegation of fundamental dishonesty under either provision. In future though, this is the type of case where arguments on fundamental dishonesty are likely to be deployed as the heads of loss typically affected by the dishonesty or exaggeration tend to be the ones that continue into the future, such as earnings and care and as a result go to the heart of the claim.

Ultimately though this case reinforces the message that "false" claims will not be tolerated and that insurers and their solicitors will make every effort to ensure that dishonest claimants are found out.

Contact

For further information please contact John Lezemore, on 020 7645 4343 or at john.lezemore@dwf.law, or Adela Carrasco, on 0207 645 4174 or at adela.carrasco@dwf.law

By John Lezemore & Adela Carrasco

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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