Surveillance evidence can be a difficult issue in functional neurological disorder cases. Our latest case study involves a claim where surveillance was deployed early and helped to facilitate a speedy and economic resolution.
The claimant was injured during his employment when he fell several metres, sustaining pelvic fractures and multiple soft tissues injuries. He also suffered a mild head injury, but the most concerning feature of this case was a constellation of alleged symptoms which ultimately led to a diagnosis of FND.
Those symptoms included a speech disorder in the form of a stammer, tremors, ticks and right arm weakness, along with poor memory and concentration. He also suffered feelings of dissociation and fatigue.
The claimant stated that his FND symptoms continued to have a significant impact on his ability to work, function normally and on his overall quality of life. He specifically alleged that:
There was no issue on liability and the claim proceeded on quantum only.
Veracity concerns regarding the claimant’s presentation emerged following discussions with his employer and colleagues. As a result, multiple periods of surveillance were arranged which revealed inconsistencies with the claim. He was observed on multiple occasions driving significant distances on his own. He also went shopping alone on several occasions and purchased what appeared to be a weekly shop – filling several bags that he was able to carry using both arms with no apparent difficulty. While in a supermarket he was seen taking a call on his mobile phone and on one occasion he was observed running at a distance of more than two miles from his home address.
The defendant was faced with an application for a significant interim payment of £65,000, which was intended to fund multidisciplinary team (MDT) treatment recommended by the claimant’s experts. The application was opposed, partially due to the veracity concerns and also because the defendant’s neuropsychiatrist did not agree with the proposed treatment as she did not accept that the claimant would properly engage with it.
To have grounds to defend the application, the defendant took the decision to serve the surveillance evidence early in the litigation. This was analysed and subject to comment by the experts in the run up to the application hearing, resulting in an interesting range of interpretation.
The claimant’s neurologist found nothing inconsistent with a diagnosis of FND and pointed out FND sufferers have a known propensity to overreport their symptoms. They highlighted a 2012 study (Parees et al 2012) where patients with a functional tremor were asked to wear a wrist monitor to objectively measure their tremors. This was compared with simultaneous self-reporting. FND suffers noted tremors 83% of the time when, in fact, the monitors recorded them just 4% of the time.
The claimant’s neuropsychiatrist was somewhat equivocal, commenting that the way in which the claimant was seen jogging did not seem compatible with his statement at interview that he could only walk for 20 to 30 minutes. He went on to say that his diagnosis was based on the history given and that if the court were to feel that claimant’s statements could not be relied on then he could not make a psychiatric diagnosis.
The defendant’s neuropsychiatrist stated that, although the presentation seen on the footage was not inconsistent with a diagnosis of FND, there were inconsistent features compared to those recorded by the various experts, herself included.
Tactically, while there were some prospects of a fundamental dishonesty finding, it was recognised that the costs of running such an argument were extensive and there were no prospects of making a financial recovery if successful.
Ultimately the decision was taken to use the uncertainty created by surveillance to leverage an economic settlement. The case was compromised the day before the application hearing at £140,000 – a significant saving on the insurer’s reserve.
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