I&F Establishes PTSD Not Related to MVA Involving Death of Pedestrian

I&F successfully defends claim for PTSD allegedly caused by accident in which petitioner, a medical supply driver, struck and killed a pedestrian while making a delivery. Following the accident, the petitioner received six months of treatment for anxiety. He then stopped treating for  1 ½ years. When he resumed treatment, he was diagnosed with PTSD by his primary care physician, a psychiatrist, and a psychologist. He embarked on a lengthy course of treatment that involved counseling. The petitioner’s psychologist testified that PTSD was caused by the accident and recommended EDMR (eye movement desensitization and reprocessing). She also testified that the petitioner was unable to work and may never be able to do so.

The evidence adduced  at the 19(b) trial by our firm established that none of the treating providers ever restricted the petitioner from driving. Furthermore, at trial, the petitioner admitted that during the course of his treatment he engaged in recreational driving to California, recreational driving to Florida, and weekly motorcycle club meetings to which he drove his motorcycle.  The Arbitrator adopted the opinion of the respondent’s IME doctor, who testified that someone who continues to drive a car and ride a motorcycle does not fit the diagnosis of PTSD incurred while driving a vehicle. The Arbitrator noted that both of those put the petitioner in situations similar to or perhaps more dangerous from a risk perspective than his actual driving behavior in the context of this claim. The Arbitrator also found the significant gap in treatment to be telling.

I&F also established that none of the petitioner’s providers fulfilled the DSM-IV criteria by assessing the petitioner for exaggeration or malingering through utilization of objective pathology to look at whether the petitioner had a credible response pattern.  The respondent’s IME doctor was the only medical professional in this case that actually assessed the validity of the petitioner’s symptom presentation. The respondent’s IME doctor testified that the petitioner failed multiple objective tests, establishing a pattern of a malingering approach to presentation of symptoms indicating non-credible simulation for secondary gain.

The Arbitrator concluded that the accident caused a “temporary period of upset,” but that the petitioner failed to prove that the accident caused PTSD. Prior to trial, the settlement demand was in excess of $500,000.00.  The petitioner has appealed the Arbitration Decision.  Congratulations to veteran attorney Scott McCain for the excellent result.

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