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Mulsanne and Keoghs fire further warning to physio fraudsters as claimant found fundamentally dishonest

News And Events02/09/2020

Butt v Mulsanne Insurance Company Limited

A recent claim involving a chain of medical inaccuracies and alleged physiotherapy has been successfully defended by Keoghs and Mulsanne Insurance, with a finding of fundamental dishonesty. The case highlights counter-fraud processes for defending claims layering which have resulted in a nomination for Collaboration of the Year at October’s Insurance Fraud Awards.

Background

Keoghs was instructed by Mulsanne to defend a claim presented by Mr Butt who alleged that Mulsanne’s insured driver reversed into his taxi.

He presented a claim pre-proceedings for personal injury, together with physiotherapy charges of £475 covering an initial consultation, six sessions and discharge fee. The physiotherapy claim was presented with the claimant’s MOJ Stage 2 settlement pack (supported by a Statement of Truth) which clearly suggested the claimant had undergone face to face, manual physiotherapy. 

Dubious physio

The claim was handled in line with Mulsanne’s robust healthcare fraud processes, and a statement was obtained from the physiotherapist on a separate matter which confirmed he hadn’t met or spoken with the claimant or medical agency. He confirmed the sum total of his involvement was limited to being sent a pre-populated Initial Assessment form, and signing off a Discharge Report via an intermediary physiotherapist, who it transpired had been forwarded the documentation by another intermediary physiotherapy company. The physiotherapist claimed he only received payment upon signing off the Discharge Report… for the sum total of £5!

As a result, the claim was dropped from the Portal and repudiated. Despite Mr Butt then abandoning his claim for physiotherapy, fundamental dishonesty was pleaded.

Fundamentally dishonest

At trial the claimant was found to be fundamentally dishonest, with Recorder Jones noting in his judgment that:

  • The claimant had significantly over-stated the severity of the accident. He had advised the medical expert the impact was moderate, when it was evidently minor (at worst).
  • He stated that the defendant’s vehicle was a campervan, when it was, in fact, a Vauxhall Astra.
  • The claimant had alleged moderate pain and stiffness for 4-6 months, and to have attended his GP. Yet the medical records confirmed there was no such attendance.
  • In cross-examination the claimant stated that he did not like attending his GP and only went for the “worst things”, albeit he had in fact attended on a number of occasions for ailments which could credibly be questioned as being the “worst things”. It was further noted that he had in fact attended following road traffic accidents in 2010 and 2015.

Claimant’s Counsel sought to criticise a failure to raise Part 35 Questions on inaccuracies in the medical report – a submission often made in such cases. In response Recorder Jones stated;

“I do not accept that submission. It was for the claimant to adduce expert evidence that proved his case on a balance of probabilities; it was not for the defendant to highlight flaws in that evidence by way of CPR Part 35 questions. In my judgment, that is so even where the situation “cries out” for such questions, as counsel submitted was the case here.”

Regarding the inaccuracies in the medical report, Recorder Jones found;

“In my judgment, Mr Butt did notice the errors in (the medical expert’s) report, and yet chose to verify it with a statement of truth on no less than three occasions and to allow it to be deployed in support of his claim. That too was, in my judgment, dishonest.”

Recorder Jones went on to register his discomfort that the claimant confirmed he had never spoken to the physiotherapist, despite having presented ‘Initial Assessment’ and ‘End of Treatment Summary’ documents. Under cross-examination, Mr Butt simply said that he had discussed the claim with his solicitors, been told that there were “some problems” with it, and so decided not to proceed.

Following the finding of fundamental dishonesty, Mr Butt was also ordered to pay Mulsanne’s costs.

Comment

Toby Evans, Partner at Keoghs, acting on behalf of Mulsanne said;

“David Taylor and his team at Mulsanne have spent a lot of time and effort investigating agencies and physiotherapists to establish what goes on ‘behind the invoice’, and have in place strategies which identify those of concern, at which point a zero tolerance approach is taken. This is yet another success as a result of those strategies. I welcome the judgment, particularly in respect of the claimant’s criticism of not raising Part 35 Questions related to a report which was littered with (at best) inaccuracies. It is a criticism often levelled at defendants, although it really is not for the defendant to get the claimant’s house in order for him.”

David Taylor, Fraud Operations Manager at Mulsanne added;

“This case is a good example of the importance of applying the right levels of validation to low value whiplash claims within the MOJ portal in order to ensure appropriate claims are targeted for further investigation. The proactive work carried out by my team at the pre-litigation stage has paid dividends in setting the scene for Keoghs to proceed with the robust defence of the claim to trial. We welcome the fundamental dishonesty finding and the comments made by Recorder Jones within the judgment which support the steps that we have taken to defeat this spurious claim.”