Commonwealth v. Jerome12/17/2002
3. Dessin again sought emergency assistance at Somerville Hospital, where he complained of shoulder, low back, and left leg pain. He denied having a past medical history, and was diagnosed with neck and back strain. Thereafter, he again was treated by Dr. Jacques and Dr. Khalsa. Dr. Jacques reported that the patient's "symptoms, complaints, and subjective and objective findings are causally related to the accident that occurred on [November 2, 1993]." Dr. Jacques treated Dessin on seven occasions, discharging him on January 22, 1994. Dr. Khalsa reported that " he subjective complaints, physical examination findings, and the patient's past medical history lead to a conclusion that these injuries are causally related to the accident of November 2, 1993." He found Dessin to be totally disabled between the date of the accident and January 3, 1994, and opined that he would be likely to experience "flare-ups of pain over the next several months." Dr. Khalsa's records again contained the entry, "Prior mva recovered."
Dessin applied to Arbella Mutual Insurance Company (Arbella), then the insurer of the automobile school, for PIP benefits. In this regard, the defendant submitted to Arbella the Somerville Hospital record, as well as the records of Dr. Jacques and Dr. Khalsa, pertaining to Dessin's treatment after the November 2, 1993, accident. Dessin also asserted a claim for bodily injuries with Arbella, which insured the other driver in the accident. Dessin refused to cooperate with Arbella's request that he attend an independent medical examination. Subsequently, the defendant, on Dessin's behalf, forwarded to Arbella a demand for a settlement of $30,000, asserting that Dessin had periods of total and partial disability, as well as residual pain and a need for continued medical treatment.
Dessin was involved in another accident on January 28, 1994, but was not represented by the defendant with respect to it. With regard to the November 2, 1993, accident, Arbella, aware that Dessin had asserted a number of other motor vehicle accident claims, requested that he provide medical records pertaining to those claims, or, in the alternative, releases so that Arbella could obtain the information on its own. The defendant responded by providing releases pertaining to the immediately preceding accident occurring on June 24, 1993, and the subsequent accident occurring on January 28, 1994, and wrote that " nformation regarding any other accidents is in no way relevant to this claim." Arbella did not pursue the request.
Thereafter, Mr. Lang, by this time the defendant's partner, forwarded to Arbella medical reports regarding the June 24, 1993, accident. These included a report of Dr. Jacques indicating that the injuries caused by that accident were resolving themselves, and that Dessin denied having further pain in his left shoulder and knees, although he continued to report cervical spine pain and stiffness. Also forwarded was the report of the Somerville Hospital emergency room reflecting Dessin's denial of a prior medical history. In addition, Mr. Lang forwarded a report of Dr. Khalsa stating that "the patient's symptoms were essentially resolved and manageable with home care"; that he continued to complain of intermittent neck and low back stiffness; that his condition had become "permanent and stationary," with a fair prognosis; and that, given the nature of the injuries, "there is a high probability that there will be future flare-ups of symptoms, without further trauma, for an indeterminate period of time." Mr. Lang added on his own, "You will note Mr. Dessin completed all treatment [from the accident of June 24, 1993] on August 11, 1993 and had no residuals, three months prior to this loss [the acc
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