After their recent Decoding FND podcast series, our Functional Neurological Disorder Special Interest Group pick up their casebook again to examine a claim involving symptoms not always associated with the condition.
A lot of case commentary relating to FND focuses on claims involving common symptoms such as paralysis, involuntary movements, altered sensation and seizures. However, there are often cases with more nuanced symptoms, such as fatigue, which can be missed or not attributed to FND.
In this particular case, the claimant was a 26-year-old male who suffered a significant electric shock that caused him to go into cardiac arrest requiring defibrillation. Following the service of proceedings, the defendant was served with a provisional schedule of loss totalling £750,000. Liability was admitted and the matter proceeded on a quantum only basis.
The parties obtained their own evidence in the fields of neurology, neuropsychiatry, neuropsychology and employment. The claimant’s expert and witness evidence made it apparent that the main complaint was chronic fatigue along with concerns regarding his cognitive functioning. The claimant complained of short-term memory loss, an inability to concentrate and low mood. Due to his injuries, he was medically retired from his role and there were concerns that he would be unable to find alternative employment.
By 30-months post-accident the claimant had begun working part time at a charity shop for nine hours per week. During these shifts, he found it difficult to stay awake and when he returned home he described being “mentally exhausted”. Due to the effect on him and his homelife, he quit the job three months later.
In terms of the neurological evidence there was agreement that the index accident had caused persisting cognitive impairment. However, there was disagreement regarding the severity of the symptoms. The claimant’s expert reported that he was unlikely to experience any further spontaneous improvement in ongoing symptoms and he was classified as disabled. The expert also suggested that, due to the ongoing fatigue, he would not be able to return to work.
In contrast, the defendant’s expert was more positive and suggested there was scope for modest improvement in the claimant’s intellectual capacity over the following 12 to 24 months. The expert stated that he would be able to return to full-time employment as the impact of the residual symptoms were minor.
There was also disagreement regarding the neuropsychiatric evidence. While there was consensus that the claimant was disabled at the time of assessment, the defendant’s expert suggested that, with treatment, the claimant would no longer meet the criteria under the Equalities Act 2010.
Four years post-accident the claimant served an updated schedule of loss in excess of £2.1 million, with the bulk of this relating to future loss of earnings which was pleaded at £1.25 million.
The defendant served a counter schedule of loss in the sum of £605,000 and was of the opinion that, while the claimant would be able to find alternative employment, his earning capacity had been reduced. £470,000 was offered in the counter schedule for future loss of earnings.
At the joint settlement meeting (JSM), the claim was settled for £1.1 million which was a saving of more than £1 million against the pleaded claim.
This case provides a useful reminder that FND produces all manner of symptoms and these types of cases can often be missed or misattributed to other diagnoses before being correctly identified. It is important to choose robust experts who have experience of FND claims. In this case the strength of the joint statements assisted when the parties proceeded to the JSM and was one of the main reasons why such a significant saving could be made.
For more information, please contact:
William Fitch - FND SIG member
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