August 1, 2007 by Joseph P. Cahan
The perils of a litigant failing to accurately disclose their medical history was vividly illustrated in a recent B.C. Supreme Court jury trial. Balwinder Singh Rallahan had demanded damages of $200,000 for lost wages, $50,000 for pain and suffering, plus expenses and court costs for injuries allegedly suffered in two motor vehicle accidents.
During the trial it emerged that Rallahan had failed to disclose information about his pre-accident medical history and therefore his credibility was clearly an issue for the jury.
After hearing five days of evidence, the jury initially decided that there had been an injury, but awarded no compensation. After re-direction from the trial judge, the jury awarded Rallahan $1,000 for the first accident, and dismissed his claim for the second accident. As the insurer had offered to settle the case prior to trial for an amount greater than the jury’s award, Rallahan has been ordered to pay court costs to the insurer.
On Feb. 16, 2001, and May 17, 2002, Rallahan was involved in motor vehicle accidents while driving his taxi. He brought actions against both drivers who had hit him, and liability was admitted by those defendants. The only issue to be decided at trial was the amount of Rallahan’s damages. Attempts had been made to settle the claim, but the insurer was not convinced that the accidents in which Rallahan had been involved had caused him any significant injury. Rallahan maintained he had been healthy prior to the accidents, and that the accidents had caused him ongoing physical and financial difficulties.
Rallahan claimed that as a result of the accidents, he was suffering ongoing lower back pain, neck pain, pain and numbness in his right hip and pain in his right shoulder. He claimed because of this ongoing discomfort, he was unable to play volleyball or engage in other activities, and was unable to do chores around his house, such as washing his taxi or mowing the lawn. Further, Rallahan claimed that his injuries were causing him to lose income. At trial, he stated that before the accidents he had consistently worked six days a week. He claimed that because of his ongoing accident-related pain, he had reduced his work week to five days, and cut down the number of hours he worked per day. He also claimed he was no longer able to assist customers with heavy luggage and was losing business as a result.
At trial Rallahan attributed all of his pain, suffering, and income loss to the motor vehicle accidents which had occurred in 2001 and 2002. When asked at trial about his health and medical history prior to the accidents, Rallahan stated he had been involved in one previous motor vehicle accident, — in the early 1990’s — which had caused him neck and back pain that lasted approximately two to three years. However, he claimed that by the time of the first accident in 2001, his injuries from that prior accident had completely resolved. He further stated he had not been undergoing any treatments for neck or back pain before the first accident.
But, in fact, Rallahan had a history of shoulder injury and chronic back pain. In 1997, he filed a work-related injury claim for injury to his right shoulder, which had been caused by carrying heavy luggage and was treated with massage therapy. Rallahan’s medical records also indicated that in 2000 his doctor referred him for massage therapy sessions because of chronic back pain. In January 2001, he was given a further referral for massage therapy, which he continued to receive right up until the first accident. In addition, Rallahan had undergone physiotherapy treatments in the year prior to the first accident for severe low back pain. According to the physiotherapist’s records, the pain had started uneventfully, likely because of long hours sitting in his taxi and lifting heavy luggage into and out of the cab.
Not only did Rallahan not tell the insurer about his pre-accident medical problems, he also did not tell his own medical specialists. Rallahan was sent by his lawyer to see an orthopaedic surgeon, who diagnosed him as having a disc protrusion in his lower spine, and impingement syndrome in his shoulder. The surgeon was initially of the opinion these problems were likely caused by the accidents. However, it emerged at trial that Rallahan had not told the surgeon about his pre-existing problems or about his treatment for those problems. In fact, the surgeon testified at trial he had specifically asked Rallahan whether he had any previous back, neck or shoulder problems, and Rallahan had responded that he did not. When the surgeon was provided with Rallahan’s pre-accident records he changed his opinion and concluded that it was more likely that Rallahan’s back and shoulder problems had pre-dated the motor vehicle accidents.
Prior to trial, Rallahan was also sent by his lawyer to an occupational therapist (OT), who conducted a work capacity evaluation. In her assessment, the OT was of the opinion that Rallahan was not competitively employable due to his physical limitations, which affected his capacity to work as a taxi driver. As with the orthopaedic surgeon, Rallahan did not tell the OT about his pre-existing back problems, nor about the therapy he had been undergoing for those problems before the accidents occurred.
At trial, Rallahan was less than forthcoming about other aspects of his claim, as well. Previously an avid volleyball player, he claimed that he had not been able to play volleyball at all since the accidents. However, references in the medical records confirmed this was not the case. Similarly, he claimed that the accidents had forced him to reduce his daily work hours, and reduce his workweek from six to five days. However, his own work records indicated that prior to the accidents he had been working five days per week, and was working approximately the same hours after the first accident as before it. Finally, Rallahan claimed that he had lost income as a result of the accidents, but his records confirmed that his income had, in fact, increased since the accidents.
The inconsistencies in Rallahan’s evidence clearly made an impression on the jury, who dismissed the majority of his claim. While allegations of personal injury can be difficult to disprove, a detailed review of medical records can uncover facts that the medical experts may have missed. This case underscores the importance of obtaining and thoroughly reviewing pre-accident clinical records before coming to any conclusions about diagnosis, prognosis or causation.
Joseph Cahan is a member of Alexander Holburn Beaudin & Lang LLP. He specializes in matters involving personal injury, disability insurance, life insurance, accident insurance, travel insurance, occupiers’ liability, property damage, fire and arson claims, insurance fraud, coverage issues, subrogated claims and professional liability. Alexander Holburn Beaudin & Lang LLP is a member firm of the ARC Group Canada Inc.