Discrepancies in medical reports led to finding of fundamental dishonesty

15 Oct 2020

Sandeep Aujla, Solicitor at BLM has represented RSA in successfully obtaining a finding of fundamental dishonesty at a recent trial.

The claimant, who was injured in the course of her employment, brought a claim for personal injury against her employer. Liability was admitted at a fairly early stage.

Prolonged unauthorised absence

The claimant was absent from work following her accident, alleging significant ongoing symptoms.  She initially submitted all ‘fit for work’ notes to her employer, however after six months of absence she failed to produce any further notes to justify her continued absence.  The employer sought to engage with the claimant and met with her in her home to discuss her injuries and facilitate a possible return to work.  The claimant indicated further tests and investigations were required and she was not in a position to return to work.  She then failed to engage any further with her employer and failed to attend an Occupational Health Assessment.

The claimant was eventually dismissed from her employment on the grounds of gross misconduct due to prolonged unauthorised absence.

Court proceedings 

The claimant issued court proceedings, initially seeking damages up to £10,000 before amending her claim form to a value up to £20,000.

She sought to rely on medical evidence from experts in three separate disciplines. Medical records were only made available to one expert and on review of the evidence it became apparent there were a number of discrepancies in terms of the reporting of symptoms and the severity of those symptoms.  BLM sought disclosure of the claimant’s full, updated medical records, noting that a number of the symptoms reported to the experts and to her employer were not supported by the claimant’s medical records.

Part 18 questions were put to the claimant, which resulted in further discrepancies, as well as Part 35 questions to one of the experts. 

Surveillance evidence

The claimant’s employer, insured by RSA, received anonymous information that the claimant was working in a local supermarket and was not in fact injured.  In light of this RSA obtained surveillance evidence, which showed the claimant working in a supermarket with no apparent restriction, after she had been dismissed from her employment.

BLM, on behalf of RSA then made an application to amend the defence to plead fundamental dishonesty and for permission to rely on the surveillance evidence, both of which were successful.

The claim went to trial earlier this month at which the District Judge found that the claimant’s explanation for the discrepancy in symptoms reported to her employer and medical experts compared with her medical records was not credible. 

The judge was satisfied the claimant had exaggerated her claim by providing incorrect information to her medical experts and employer and failing to advise her medical experts of relevant pre-existing symptoms. 

The claim was dismissed with a finding of fundamental dishonesty against the claimant.  Costs were awarded to BLM.

BLM solicitor, Sandeep Aujla, representing RSA, said: 

“Whilst some would have settled this relatively low value claim, RSA was determined to fully investigate the suspicious claim and to pursue fundamental dishonesty when the discrepancies in the claimant’s case began to mount.  The exaggeration in this case was not obvious at the outset but by obtaining surveillance evidence, good witness statements and carrying out a forensic analysis of the medical records, it was possible to achieve this positive outcome.

"This should also serve as a further reminder to claimants that exaggeration of a small part of their claim, or the withholding of relevant information from medical experts, could lead to the entire claim being dismissed even where liability was admitted and part of the claim was genuine.”

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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