How fresh intelligence evidence (and a little persistence) secured the right result in a complex CTS claim
“I love it when a plan comes together!”, as Hannibal Smith, the leader of “The A Team” used to say in the 1980s TV show. That was my thought when we received a discontinuance in a carpal tunnel syndrome (“CTS”) claim recently.
The claimant had been employed as a gardener and alleged a requirement to use vibrating tools at a frequency and duration which constituted breach of duty by our client, the defendant. His medical expert confidently diagnosed CTS but nonetheless suggested that nerve conduction studies (regarded by most experts as the gold standard for the diagnosis of CTS) be undertaken. The claimant was young (in his 20s) and claimed a significant ongoing disability with restriction in his ability to grip bimanually and therefore both to work and undertake the normal activities of daily life. Seemingly, nerve conduction studies had not been undertaken and the clamant had gone to Australia for an extended period, although at that stage seemed intent on returning home for any trial.
The defendant’s evidence was that the claimant had received the necessary training, was not required to use the vibrating tools to the extent alleged and that he had been moved to non-vibratory roles once he had complained of symptoms but had chosen to leave to go travelling. Understandably, there were also concerns in relation to potential exaggeration but intelligence searches, undertaken by our client, had not revealed any useful information.
Investigating the evidence
Our investigation was also hampered by the claimant’s medical records being dispersed among a variety of different treatment centres, Plainly, we needed to be satisfied that the diagnosis was correct, that the causative factor was work (and not something else) and that the progression of, and extent of symptoms, matched the normal evolution of the condition and were, on balance, true.
The claim rolled on and then, shortly before trial, a number of important things happened at once (much like an episode of the A Team). The first thing was that we received some of the medical records that we had been pressing for, which contained nerve conduction studies, arranged by the treating hospital. The results did not support a diagnosis of CTS at all. If the claimant did not have CTS, then did he in fact have the symptoms complained of? With client permission, Weightmans’ Intelligence Team re-ran the searches, this time locating several social media entries showing the claimant undertaking activities beyond his alleged ability, the most informative of which was a video of the claimant paddling a white-water raft.
At about the same time, the claimant’s solicitor indicated that the claimant was not intending to return to the UK in time for the trial and that they would seek permission to give evidence by video, something which we objected to given the evidential conflict in relation to liability alone.
The outcome
We immediately made the necessary application, to rely on the witness evidence of our intelligence handler, annexing the social media evidence and explaining the reasons for the delay being, primarily, the claimant’s failure to disclose at the appropriate stage his medical records and social media entries. In addition, we argued that a fair trial could still occur on the set date (which was by then only weeks away) despite the late disclosure, given that these were the claimant’s documents and thus he could not say that he was taken by surprise by them.
At the same time, we made a formal fundamental dishonesty warning, explaining exactly what our case at trial would be and the likely outcome if a finding of fundamental dishonesty was made, that is, strike out of the claim, reversal of QOCS and enforcement of any resultant costs order.
We also made a very short, time limited “drop hands” offer which the claimant promptly accepted.
Lessons learned
When I look back at this case looking for learning points, what strikes me is that social media is a living thing and that single (negative) searches for relevant entries should not be regarded as the end of the line. Here, the very quick turnaround (it was days) of the intelligence report and creation of a fully compliant statement by Weightmans’ Intelligence team, was the winning stroke. Professionally undertaken searches are quick and (should be) relatively cheap, whilst the potential savings are large, making them a must have, multiple deployment tool in any insurer’s armoury.
