Background:
Service dogs assist persons with a disability. The definition of a service dog and a specific dog’s training and performance are focal to this case.
In Michigan, the owner of a dance company was the victim in a car accident. An admittedly at-fault driver t-boned the dancer’s car in an intersection.
The dancer/dance teacher/business owner claimed she resultantly suffered orthopedic injuries, recurring vertigo, headaches, and mental health deficits that constitute permanent disabilities. Allegedly, severe physical injuries created pain when walking and impaired her ability to dance at a high-level. Vertigo compromised her safety when dancing. Headaches and mental health issues caused emotional pain and panic episodes.
To mitigate the limitations and effects posed by her disabilities, the dancer elected to obtain a Golden Retriever and then educate the dog to become a service dog. To facilitate her objectives, she hired a private trainer, who used a combination of virtual instruction, private instruction, and small group instruction.
The at-fault driver’s insurance company disbelieved the dancer’s injury claims and the legitimacy of her canine remedy. Therefore, they refused to settle for an amount satisfying the dancer. Concomitantly, the frustrated dancer sued the at-fault driver and the driver’s auto insurance carrier.
In the Plaintiff’s claim for damages, she requested indemnification for the cost of her service dog and the associated training. However, the auto insurer had doubts regarding the verity of the dancer’s injuries, their severity, her need for a service dog, the legitimacy of private and group training as a modality for the dog’s education, and whether the dog’s current proficiency qualified it as a service animal. Therefore, the insurance company hired a CPT expert to consult on the case.
Questions for the CPT Expert:
The CPT expert reviewed depositions, medical letters, social media posts, photographs, and videos forwarded by the insurer’s contracted counsel. Defense attorneys principally wished the CPT expert to answer several key questions.
- Is the dog a legitimate service animal?
- Does the dog perform tasks related to the claimed disabilities?
- Is the dog competent in its role?
Expert response to the preceding questions would determined whether the insurer refused to pay damages related to claimed service dog expenses or whether the insurer settled in good faith.
Analysis of the Evidence- Americans with Disability Act:
The American with Disabilities Act (ADA) provides the industry accepted definition for “service animals.” Title II and Title III of the ADA define a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”
Letters from medical doctors and therapists documented the physical and mental health injuries claimed by the Plaintiff. The letters also detailed a prognosis for each injury, including a probable duration. Thus, evidence supported the Plaintiff’s claim of multiple disabilities.
Per the ADA, the Plaintiff must suffer a disability for her dog to satisfy the definition of a “service animal.” Thus, the primary remaining factor pertinent to Question 1 was whether the dog did work or performed tasks related to the Plaintiff’s disabilities.
Due to cost, the insurer decided against deposing the Plaintiff’s doctors. Therefore, the referenced letters provided the exclusive source of professional medical opinion.
Analysis of the Disability Evidence and The Dog’s Training:
However, the defense deposed the dog’s trainer and the Plaintiff. When deposed, the dog’s trainer and the Plaintiff discussed the dog’s education. Moreover, they provided compatible answers, without inconsistencies. They listed multiple task behaviors within the dog’s lesson plan. They disclosed the dog’s stage of training and competence related to each task. And they explained each task’s relevance to a specific disability claimed by the Plaintiff.
Nevertheless, the CPT expert did not wish to incontrovertibly trust the depositions. People are prone to fraud, misstatement, and exaggeration. Consequently, doubt remains unless physical evidence confirms verbal or written testimony.
To resolve doubt, the CPT expert next viewed still and video images of the Golden Retriever’s training and practical performance. Ouch! The photographs and video were highly compelling- for the Plaintiff.
Photographic and video evidence confirmed the dog’s competent performance of several psychiatric task behaviors. The Golden Retriever calmly and proficiently performed “deep pressure therapy.” Deep pressure therapy (DPT) appears deceptively simple. It is the dog laying atop a seated or reclined recipient for an extended period. Yet, despite the apparent simplicity, the behavior can produce a remarkable calming effect upon an anxious or distressed person. Moreover, only a minority of dogs possess the temperament and training to competently execute the behavior for the required duration.
The Golden Retriever also proficiently performed a “stand-lean.” In a stand-lean, the dog consciously remains stationary, while leaning into the leg of the recipient. Recipients then commence tactile contact upon the dog’s head or spine. The combined canine lean and human manual contact can powerfully relax an otherwise distressed person.
Until receiving an explanation from the CPT expert, the attorney was unaware the preceding behaviors were industry accepted task behaviors. Nor was the attorney aware the behaviors fell within the scope and spirit of the ADA definition for service dog work.
Moreover, the CPT expert advised defense counsel that in CFRs and TMs the Department of Justice has ruled that a service dog’s task need not be necessary. The code only requires that the task be related to the recipient’s disability. Furthermore, the task does not have to be unique, whereby no other solution accomplishes the same objectives. All that matters is whether the task mitigates the limitations and effects of the disability.
Elaborating further, the ADA does not establish registration, certification, or competency requirements for a dog to satisfy the definition of “service animal.” Nevertheless, the dog must be more than an emotional support animal, where benefit is obtained via the dog’s mere presence. The dog must perform at least one task behavior specific to the recipient’s disability. Yet, the depositions and images documented that the dog in question fulfilled the ADA requirements.
Conclusions:
Thus, the answer to Question 1 is “yes, the dog is a legitimate service animal.” Likewise, the first part of the answer to Question 2 is “medical evidence supports the existence of the Plaintiff’s claimed disabilities.” Moreover, there is no evidence dispelling the Plaintiff’s claims. The answer to the second consideration for Question 2 is “the dog perform tasks related to the claimant’s disabilities.” Similarly, the answer to Question 3 is “evidence supports the dog’s competence in its service dog role.” Furthermore, competence is not requisite or defined within the ADA specifications.
In summary, unfortunately for the defendant’s insurer, CPT expert Mark Spivak concluded evidence overwhelmingly supported the Plaintiff’s (dancer’s) position.
Consequently, from the standpoint of defining the dog as a service animal versus a standard pet or emotional support animal, the CPT expert could not ethically agree with the defense counsel’s position. Thus, in the CPT expert’s opinion, purchase, training, and maintenance costs for the dog were most likely recoverable as part of indemnification for the injured party’s overall medical costs.
CPT Expert Integrity:
CPT experts are highly competent and objective. If we agree with counsel’s position, we will vehemently and passionately assist the attorney in obtaining justice for the client.
However, if facts lead otherwise, we will provide a detailed, forthright, unbiased response regarding weaknesses to the case, while recommending that CPT’s role be limited to “consultant.” Thereby, CPT’s work product is not disclosable to opposing counsel.
Integrity is important to CPT experts. Furthermore, we believe such honesty is in the best interests of the hiring attorney, as then the attorney is less likely to spend time and money protracting a case that he/she has a low probability of winning.