Clyde & Co secures a discontinuance on a Functional Neurological Disorder Case

This claim involved a claimant who allegedly fell while walking downstairs at work.

He landed on his lower back and elbow and was found distressed by a colleague. He attended hospital, where scans revealed no trauma to his elbow or spine, although he reported back pain. There was no evidence of a head injury or loss of consciousness.

A CNF was submitted to the portal within three weeks of the accident. Ten days later, he returned to the hospital with a two-day history of worsening back pain, pins and needles, weakness in both legs, and a sensation of a "crack" in his back. An MRI scan of the full spine was normal. Unusually, at this early stage, a neurologist diagnosed him with Functional Neurological Disorder (FND).

Subsequent hospital admissions followed for lower limb weakness and sensory deficits. He also reported experiencing several seizures, which were diagnosed as Non-Epileptic Attack Disorders (NEAD).

The claimant was unable to work and, at various times, relied on either a wheelchair or crutches.

Litigation

Proceedings were issued on the cusp of limitation and Clyde & Co were instructed.

The claimant served a report from a neurologist who opined that he had developed moderately severe FND and seizure episodes diagnosed as NEAD, subsequent to the accident. He advised that the prognosis for FND was poor, and the claimant should be deemed disabled. He deferred to a neuropsychiatrist on causation.

Later a report from a Neuropsychiatrist was served confirming that the FND and NEAD were caused by the accident, but that the claimant was showing signs of improvement.

The claimant also served a report from an orthopaedic surgeon who on examination found a number of signs of functional overlay, with none of the symptoms explained orthopaedically.

Defendant’s Medical Evidence and Surveillance

It was crucial to undertake a forensic review of the medical records and instruct the best experts in this field.

An expert Neuropsychiatrist was able to offer a relatively quick opinion, in which he confirmed the diagnosis and that it was caused by the accident. This was despite raising some flags we had identified in the medical records.

It was felt at that stage that this was a genuine claim for FND and the defendant made a Part 36 offer.

The claimant rejected the offer and we pressed on with the litigation, obtaining a report from a Neurologist who also found the claimant to be genuine and confirmed the diagnosis and that it was caused by the fall down the stairs. Of note, the expert took a video of him at the examination walking with a very slow shuffling gait and unable to pick up his feet. The claimant alleged he could do very little, could do no heavy lifting, was unable to go on holiday, drive or walk at normal speed.

The diagnosis of FND depends on a patient’s reporting and cannot be objectively verified with laboratory or radiological investigation. The diagnosis by both experts was made on the basis of the claimant having findings typical of the condition, coupled with the absence of any evidence of wilful exaggeration.

It was however felt that the claimant was more able than he was admitting to medical experts. The insurers therefore commissioned surveillance which was a game changer as he was seen walking two dogs at normal speed, bending down with ease, driving his car and pumping up tyres.

The claimant, watched by his wife, was videoed at an examination, and was seen to walk with a very slow, deliberate gait. He was unable to crouch down and was wincing in pain. Yet earlier that same day, he was seen on surveillance walking at a normal pace.

It became apparent that there was a stark difference in how he presented to medical experts and how he presented in normal life.

We immediately withdrew the Part 36 offer. The claimant’s condition immediately deteriorated.

Discontinuance

We had to wait patiently for exchange of witness statements. The claimant’s statement came with an unexpected admission that he had lied to the medical experts about his ability to drive and go on holiday. He continued to report various symptoms and mobility issues.

Our experts were asked to consider the witness evidence and the surveillance and were firmly of the opinion that the surveillance was incompatible with the alleged disability claimed by the claimant, and it was unclear from a musculoskeletal point of view why he presented as he did.

Both experts felt the claimant’s witness statement and surveillance were significant. The discrepancies between what the claimant told the experts he could not do and what he was seen to do was wilful exaggeration. The Neurologist stated that FND was a diagnosis which was based on credible reporting by the claimant. With the video and the claimant’s admission of lying to exaggerate he could not now be confident of a diagnosis of FND and so could not say on the balance of probabilities that the claimant had a medical condition arising out of the accident.

The defendant served all the medical and surveillance evidence and gave the claimant a limited opportunity to discontinue the claim. The claimant no doubt having been advised of the potential consequences of a finding of fundamental dishonesty at trial, promptly took the offer and discontinued the claim.

What we can learn

Ultimately, this case turned on a forensic review of what the claimant told all the medical experts he could and could not do in examination and in his statement and comparing it to the surveillance. This involved a patient wait for exchange of witness statements.

One of the key reported symptoms was an unusual gait as a result of which the claimant reported that it took him over 25 minutes to undertake a journey that would normally take five minutes. He said that he walked like that all the time, confirming there were no “good days”.

The quality of surveillance in this case enabled us to calculate the distance that the claimant had walked and the time he walked it in, and he was found to walk far faster than he reported and how he demonstrated in two examinations. This discrepancy in gait ability seen on surveillance compared to the claimant's description was crucial to the defendant’s experts’ withdrawal of the previous diagnosis.

Of note, neither expert felt it was their role to state he was fundamentally dishonest, deferring to the court. Furthermore, the fact their previous reports considered him genuine added integrity to their final opinions. With credibility such an essential component to a diagnosis of FND, the surveillance evidence meant they were no longer able to say on the balance of probabilities that he had FND.

This was a great example of the insurer, claims handler, solicitor and counsel working as a team to obtain the evidence, analyse it and then being very strategic in its service. Thankfully the patience has paid off resulting in substantial savings.