Functional Neurological Disorder: A Legal Case Study 2
Functional neurological disorder (FND) is a condition where there is a disorder of the function of the nervous system, i.e. how the brain and body send/receive signals. With current technology, it is not a condition where we are able to see structural neurological damage.
FND can cause debilitating symptoms. Historically, there has been a lack of understanding and acceptance of FND by doctors and patients, although this is now changing. This has been thanks to: a growing number of charities, such as FND Hope UK and FND Action, who do great work raising awareness; a vocal online community; and leading doctors (such as Dr Chris Symeon, Prof Alan Carson, Prof Jon Stone) talking about this condition.
I’ve previously written blogs (here and here) on FND from my perspective as a brain injury lawyer. To raise awareness and understanding of FND I write this second case study showing how we helped a client obtain compensation for FND caused by an accident at work. This was a hard fought legal battle in which the other side aggressively accused our client of faking symptoms. Information has been changed to protect the identity of our client.
Rose was at work when a heavy object fell onto her head. It was her employer’s responsibility to fasten the object so it would not fall. It was obvious the employer was at fault.
Symptoms and Treatment
Rose lost consciousness momentarily after the accident and was taken to hospital immediately. Brain scans were normal, she was diagnosed with concussion and discharged home. Initially she suffered fatigue and “brain fog” typical of concussion.
A few months later she developed: limb weakness; speech problems; altered sensation down one side of the body; anxiety; mood swings; and cognitive impairment. These injuries were debilitating and drastically changed her life for the worse: she was not able to work; she went out less and lost friends; and family relationships were strained.
Rose’s GP referred her to a neurologist. At the appointment, the neurologist advised Rose she had functional symptoms and asked her to watch an online self-help video about functional disorders. No further treatment was offered. Rose was upset and felt abandoned by the lack of interest shown by the neurologist.
We are brain injury specialists. We knew Rose could be suffering from FND even though test results were apparently normal. We instructed medical experts with specialism in FND. They concluded the accident caused FND with the debilitating symptoms Rose now suffers from.
FND can become entrenched and harder to treat as time passes. Early treatment can be key to a good recovery. We notified Rose’s employer of her injuries early on and requested payment for treatment. The employer refused and denied liability. Unfortunately, unreasonable denials are often used as a tactic to minimise paying compensation, even when a defendant knows they are liable. To make matters worse, the employer went on to aggressively accuse Rose of faking injuries for financial gain. To do so, they took advantage of the lack of objective tests for effects of FND.
Rose did not pass performance validation tests in neuropsychological testing. The only conclusion one can draw from this, is the results from other tests cannot be relied upon. Performance validation tests tell you nothing about the reason, or motive, for not passing. However, the employer tried to use it as evidence of dishonesty.
The employer made inferences from documentary evidence to accuse Rose of going out more than she claimed; and hence being dishonest. In cases such as this I am certain the employer would have obtained video surveillance to check whether Rose’s injuries were as she claimed. Surveillance evidence was not served and they failed to confirm it did not exist. I strongly believe there was surveillance evidence which accorded with Rose’s claims, yet the employer continued to accuse her of being dishonest as a tactic to minimise paying compensation.
We fought back fiercely against every accusation and sought court orders to help our client. After a hard battle the employer capitulated and settled the case for over £250,000.
Two issues really stuck with me after winning this case for my client. Firstly, even with funds, finding good private treatment is difficult. More needs to be done to provide treatment (NHS and private) for FND.
Secondly, the aggressive approach adopted by Rose’s employer could easily have scared solicitors without experience of FND. It is vital for FND patients with personal injury claims to instruct the right solicitor.
Hokman Wong was a pharmacist and is now a specialist brain injury solicitor. Through acting for clients with FND he realises how poorly understood this condition is. He wishes to raise awareness of FND to help patients get treatment and safeguard their legal rights.