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Commonwealth v. Jerome12/17/2002
vember 2, 1993, accident. That document contained the notation "PMH Ø," meaning that Dessin had reported no prior medical history during his intake interview. The Commonwealth suggests that the defendant submitted the document with the intention of deceiving the insurer into believing that Dessin had had no prior accidents.
The problem with this theory is that the evidence leaves unknown what question or questions elicited Dessin's "no prior medical history" response, and therefore there is no basis for concluding that the response was false. There was testimony that a patient with a prior medical history might nevertheless respond in the negative if he no longer had symptoms associated with the prior condition. The unadorned entry is too ambiguous in this context to support a reasonable inference of falsification. See Corson v. Commonwealth, supra at 199.
Furthermore, the evidence does not warrant a finding that the defendant submitted the record with the purpose of misleading the insurer regarding Dessin's previous accidents. In presenting documents to Arbella regarding the claim arising from the November 2, 1993, accident, the defendant included a report by Dr. Khalsa that contained the notation, "prior mva recovered." Submission of a document that directly referred to a prior accident and that implied that there had been bodily injuries associated therewith (given that the patient had "recovered") is hardly consistent with an intention to conceal the fact of the prior accident. Accordingly, the Somerville Hospital record does not establish either the existence of a falsehood or an intention on the part of the defendant to employ the falsehood in order to obtain an advantage with respect to the claim.
(ii) The Commonwealth next focuses on the report of Dr. Khalsa that indicated "prior mva recovered," charging that the defendant, by submitting that report, failed to disclose that another physician (Dr. Charles) had opined that Dessin had a five per cent impairment as the result of an earlier accident. The opinion on which the Commonwealth relies was rendered by Dr. Charles in connection with his treatment of Dessin following the latter's accident on February 4, 1992. Dr. Charles determined that Dessin was totally disabled from February 4, 1992, to March 18, 1992, and partially disabled from March 19, 1992, to April 2, 1992. The patient stopped treating with Dr. Charles on April 2, 1992. Asked whether Dessin's condition would result in any permanent defect, Dr. Charles stated, "There always remains the possibilities of at least [five per cent] permanent impairment in injuries such as these," and rated Dessin "for permanent impairment of whole person at [five per cent]."
Following the accident of November 2, 1993, Dr. Khalsa treated Dessin for injuries that the physician concluded were causally related to that accident. In a report that the defendant submitted to Arbella, Dr. Khalsa referred to "the patient's past medical history" as a basis for his findings, thereby further rebutting any negative inference that might be drawn from the Somerville Hospital record. In a discharge report dated February 14, 1994, also submitted by the defendant to Arbella, Dr. Khalsa found Dessin totally disabled from November 2, 1993, to January 3, 1994; stated that his prognosis was "fair"; and expressed the view that the patient would experience "flare-ups of pain over the next several months." The Commonwealth argues that the defendant's submission of these documents to the insurer supports a finding that he intended to defraud.
We are unable to locate a falsehood in Dr. Khalsa's reports that is sufficiently apparent to justify an inference that the defendant knew of it. Dr
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