Barrett, Jillian; Caldow, Katie --- "Malingering: is it a 'thing'?" [2015] PrecedentAULA 10; (2015) 126 Precedent 36

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MALINGERING: IS IT A ‘THING’?

By Jillian Barrett and Katie Caldow

Respondents and insurers have long held concerns regarding the genuineness of claims by injured claimants, particularly with regards to psychiatric injury. The difficulty of proving the genuineness, or otherwise, of a psychiatric injury was one of the more prominent policy grounds upon which pure psychiatric claims were denied for so long.^[1]

While the vast majority of personal injury claims are legitimate, there may always be the odd claimant who intentionally feigns or exaggerates their injuries with the aim of obtaining compensation and/or damages to which they would not otherwise be entitled. Unfortunately, it has become all too common for injured claimants to be labelled ‘malingerers’ despite the legitimacy of their symptoms and disabilities. The label often arises where claimants are suffering from a pain or somatoform disorder (now referred to as somatic symptoms disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V), whereby a person suffers somatic symptoms for at least six months that are significantly distressing or disruptive to daily life and must be accompanied by excessive thoughts, feelings, or behaviours)^[2] where objective evidence of an injury may not be present. Proving that a claimant is a malingerer is extremely difficult and can usually only be done with covert surveillance exposing clear evidence of deception.

WHERE IT COMES FROM

The word ‘malingerer’ owes its history to military law: it was created by the French in the late 1700s to describe those who feigned sickness to avoid service.^[3] The concept of malingering, however, was born much earlier.^[4] There is no legal definition of malingering outside of military law.

It wasn’t until the latter part of the 19^th century, with the advent of workers’ compensation legislation, that malingering was raised as a potential issue in civil claims.^[5] From a purely personal injury perspective, malingering is relevant to both common law actions and statutory compensation claims.

With respect to personal injury legislation across Australia, the actual word ‘malingering’ appears only in Western Australia’s Workers’ Compensation and Assistance Act 1981^[6] and Victoria’s Workers’ Compensation Act 1958.^[7]

WHAT IT IS AND WHAT IT IS NOT

Malingering is not a mental disorder or illness. It is a descriptive term for the intentional fabrication or exaggeration of symptoms^[8] with ‘[t]he objective of obtaining a benefit’.^[9] In the context of personal injury claims, the benefit is statutory compensation and/or common law damages. The intention element underpinning malingering raises questions of credibility and opens the door for potential findings and penalties for fraud (see below for a discussion of credibility and fraud).

While there is no legal definition of malingering under personal injury legislation, it is described as follows:^[10]

‘The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.’

Psychiatric practitioners are guided by the DSM-V as to when malingering should be suspected in an injured person. The DSM-V states:

Malingering should be strongly suspected if any combination of the following is noted:

1. Medico-legal context of presentation (example, the person is referred by an attorney to the clinician for examination).

2. Marked discrepancy between the person’s claimed stress or disability and the objective findings.

3. Lack of co-operation during the diagnostic evaluation and in complying with the prescribed treatment regime.

4. The presence of antisocial personality disorder.^[11]

The DSM text on malingering is no stranger to criticism. It has been described as ‘[t]erribly flawed on both conceptual and practical grounds’.^[12] While there appears to be a number of factors upon which criticisms are based, Boone points out that ‘[i]t is exceptionally difficult to arrive at an objectively based discrimination between externally motivated malingering and internally motivated somatoform disorder’.^[13] Further, the intention element of malingering calls for a subjective determination by the psychiatrist; unless of course the injured person confesses to being deceitful, which is unlikely.

It is important that malingering is not confused with factitious disorder or other somatoform disorders. While factitious disorder involves the fabrication of symptoms, there is no external incentive motivating the deceit as there is with malingering. As for some somatoform disorders, while there is a lack of objective evidence of physical ailment, patients present with what they genuinely perceive to be symptoms with no intention to mislead.^[14] There is no precise method by which to determine who is truly in pain.

There is clearly a very ‘[f]ine line’ between determining malingering and psychological damage caused by a compensable injury.^[15] This is especially so when considered in the context of psychological conditions, the symptoms of which may be subjective and therefore difficult to determine whether the claimant is malingering (these symptoms may include dizziness, headaches, low mood, low energy level or loss of interest in previously enjoyed activities). If that same psychological condition is proved to be caused or materially contributed to by a compensable condition, the injured claimant is entitled to compensation despite the presence of deceit, albeit after the application of discounting where appropriate.^[16]

ROLE PLAYING – THE COURT AND EXPERT MEDICAL WITNESSES

Malingering is centred upon the fabrication or exaggeration of physical or psychological symptoms; therefore, consideration must be given to the relevance of expert medical evidence. The role of the expert medical witness is to assist the court^[17] and expert medical opinion is generally integral to a personal injury claim.

Despite the importance of expert opinion, the genuineness or otherwise of an injury claim is a question of fact. The law entrusts the role of ultimate fact-finder to the court^[18] (or tribunal) which is best placed to discharge this role as it has the advantage of ‘[h]earing all of the evidence and, in particular, of having the voracity of a plaintiff tested in the witness box’.^[19] The demarcation between the two roles – that is, the court/tribunal and the expert medical witness – is essential.

In a perfect world, all expert witnesses would be objective and independent. Unfortunately, this is not the case. ‘[C]ontroversies have existed since at least the 1860s in relation to the discharge of ethical responsibilities by forensic experts’.^[20] This is extremely concerning given the risk of injustice that arises from unsatisfactory expert evidence, as acknowledged by the High Court in Dasreef Pty Ltd v Hawhar.^[21] The risk of injustice can, of course, be to either the claimant or defendant; the former being the risk of reduction or total loss of compensation and the latter being the risk of an award of damages for a spurious claim.

In the late 20th and early 21st century, Australian courts introduced rules to ‘[p]rovide for greater independence, transparency and accountability in report-writing by experts’.^[22] While consideration of the effectiveness of those rules is outside the scope of this article, there is certainly still evidence of expert witnesses failing to meet the standards expected of them. See, for example, the recent decision of the District Court in Fofana v Inghams Enterprises Pty Ltd wherein Jones DCJ stated:^[23]

‘I found the doctor’s evidence to lack the necessary degree of objectivity... He also made a number of inappropriate and/or irrelevant references to what employees might or might not have to put up with in “third world countries” and, on one occasion, rather facetiously suggested that the process work the plaintiff carried out for the defendant might have actually improved her back condition.’

BUT WHAT OF THE ROLES FOR STATUTORY WORKERS’ COMPENSATION CLAIMS?

Given the introduction of an impairment threshold for injured workers across the country for common law entitlement, most recently in Queensland,^[24] the role of the medical expert is arguably more important than ever. Unfortunately, in Queensland at least, the court lacks the jurisdiction to interfere with a doctor’s assessment, except where the assessment was made by a Medical Assessment Tribunal and the Tribunal’s decision gives rise to one of the various grounds upon which the decision can be judicially reviewed,^[25] or where the assessment was made by a Psychiatric Medical Assessment Tribunal and the Tribunal has not assessed all accepted psychiatric injuries due to the insurer’s failure to include all injuries in the Psychiatric Tribunal’s terms of reference.^[26]

Effectively, an injured workers’ entitlement to common law damages now rests with the medical expert(s).

CREDIBILITY, FRAUD AND TIPS FOR CASE PREPARATION

The fabrication of injury for financial gain is considered fraud^[27] and therefore raises credibility issues. Defrauding or attempting to defraud a respondent or insurer in Queensland is considered an offence under each of the Motor Accident Insurance Act 1994 (Qld) (the MAIA), the Personal Injuries Proceedings Act 2002 (Qld) (the PIPA) and the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCRA).^[28] Similar provisions apply in New South Wales pursuant to the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIMWCA) and the Motor Accidents Compensation Act 1999 (NSW) (the MACA).^[29] Victoria also has a similar provision in the Transport Accident Act 1986 (Vic) (the TAA) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the WIRCA).^[30]

It has become common practice for insurance companies and their legal representatives to put claimants under surveillance in the hope of ‘catching them out’. Surveillance is most commonly undertaken by private investigators. The monitoring of a claimant’s social media site(s) has also become common practice. However, entries on social media are a mere snapshot of a point in time and are not necessarily reflective of a claimant’s actual impairment and disabilities.

The District Court in Brisbane was recently presented with video footage of an injured plaintiff as she walked to an occupational therapist appointment in Simmons v Wanless & Anor [2014] QDC 42. The footage showed the plaintiff ‘[a]t times swung her left arm freely as she walked and adjusted a shoulder bag strap with her left hand’.^[31] Despite the evidence, Kingham DCJ did not find the plaintiff to be a malingerer. On the contrary, he found the ‘[f]ootage did not conflict with [the plaintiff’s] evidence’ on the basis that:^[32]

‘She did not say she could not use her left hand at all, rather that if she used it for any period or to bear weight, she experienced pain then or later. She did not deny being able to manoeuvre her bag strap with her left hand. She said that she usually does it with her right. Ms Simmons’ description of her limitations was supported by the evidence given by her partner (emphasis added).’

Simmons’ case highlights three factors for consideration: the importance of client instructions; accurate recording of client instructions (both by plaintiff lawyers and medical practitioners/experts); and defendant consideration of surveillance evidence. We, as practitioners, can take away some practical tips for our own case preparation based on cases such as this.

Firstly, injured claimants must be advised of the importance of accurately describing their disabilities. They should not say they cannot perform an action if the truth is they can but it causes pain. This advice should be given at the very outset and reiterated throughout the claim process.

Secondly, plaintiff lawyers must be vigilant in accurately recording clients’ instructions on their disabilities. Those instructions should be cross-referenced with medical records and reports to ensure that medical practitioners are also accurately recording an injured person’s complaints. This will ensure that any inconsistencies can be addressed early.

Thirdly, insurers and defendant lawyers should consider surveillance footage against the totality of the evidence presented by a plaintiff. There was no mention by Kingham DCJ in Simmons’ case that the defendant was able to point to any inconsistencies between the plaintiff’s evidence and the video footage. If an injured person has a genuine injury, and plaintiff lawyers are adhering to the above, no such inconsistencies should arise.

A claimant guilty of fraud under the MAIA and the PIPA faces a maximum penalty of 400 penalty units or 18 months’ imprisonment.^[33] Interestingly, an injured worker guilty of fraud under the WCRA faces a fine of up to 500 penalty units or five years’ imprisonment.^[34] The penalties were consistent across the three Acts until 29 October 2013, when the WCRA penalties were increased under the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013.^[35] In addition to monetary fines or imprisonment, the defrauded party has a right to recovery of costs reasonably incurred due to the fraudster’s deceit.^[36] A claimant found guilty of fraud under the WIMWCA faces a maximum penalty of 500 penalty units and/or two years’ imprisonment and under the MACA 50 penalty units and/or 12 months.^[37] In Victoria, the maximum penalty is 100 penalty units or two years’ imprisonment for the TAA or 240 penalty units or two years’ imprisonment for the WIRCA.^[38] New South Wales is the only state researched for this article that allows both a monetary penalty and imprisonment.

SUMMARY

In order for an allegation of malingering to be proven, this should be diagnosed by a medical expert and only after that expert has clear, objective evidence of the claimant’s deception. A claimant should not simply be accused of being a malingerer as a negotiation strategy in an attempt to minimise any compensatory damages to which they may otherwise be entitled. Practitioners should remember that it is extremely difficult to prove and therefore rare that a claimant is a malingerer.

Jillian Barrett is a Senior Associate at Maurice Blackburn, QLD. She is an accredited specialist in personal injuries and the office leader of Maurice Blackburn’s Browns Plains office. PHONE [phone] EMAIL [e-mail].

Katie Caldow is a lawyer at Maurice Blackburn, QLD. PHONE [phone] EMAIL [e-mail].

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^[1] Victorian Railways Commissioners v Coultas [1888] UKLawRpAC 4; (1888) 13 App Cas 222, 226 as cited in D Butler, ‘An assessment of competing policy considerations in cases for psychiatric injury resulting from negligence’ (2002) 10 Torts Law Journal, 11.

^[2] American Psychiatric Publishing, Somatic Symptom Disorder: Fact Sheet, viewed online on 16 December 2014 at <http://www.dsm5.org/Documents/Somatic%20Symptom%20Disorder%20Fact%20Sheet.pdf> .

^[3] G Mendelson and D Mendelson, ‘Legal and Psychiatric Aspects of Malingering’, Journal of Law and Medicine (July 1993) Volume 1, p29.

^[4] Ibid, p29.

^[5] Ibid, pp29-30.

^[6] Workers’ Compensation and Injury Management Act 1981 (WA), s308 ‘Fraud’.

^[7] Workers’ Compensation Act 1958, (VIC) s75 ‘Malingering’.

^[8] DA Fishbain, HL Rosomoff, RB Cutler and RS Rosomoff, ‘Secondary Gain Concept: A Review of the Scientific Evidence’ (1995) 11(1) Clinical Journal of Pain, 6 as cited in NM Spearing et al, ‘Are people who claim compensation “cured by a verdict”? A longitudinal study of health outcomes after whiplash’, (2012) 20 Journal of Law and Medicine, 83.

^[9] Mendelson and Mendelson, see note 3 above, p28; AJ Cunnien, ‘Psychiatric and Medical Syndromes Associated with Deception’ in R Rogers (Ed), Psychiatric and Medical Syndromes Associated with Deception: Clinical assessment of malingering and deception (2^nd Edition, Gilford Press, New York 1997) pp23-46 as cited in M Raine, ‘Helping advocates to understand the psychological diagnosis and assessment of malingering’, Psychiatry, Psychology and Law (July 2009) 16 (2) pp322-8, 322.

^[10] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), Washington DC: American Psychiatric Press Inc; 2013: 726.

^[11] Ibid, pp726-7.

^[12] DT Berry and NW Nelson, ‘DSM-5 and Malingering: A Modest Proposal’, Psychol. Inj. and Law (published online 28 October 2010) at p4. www.iapsych.com/iqmr/berry2010.pdf.

^[13] KB Boone (Ed.) (2007) Assessment of feigned cognitive impairment; a neuropsychological perspective, New York: Guildford as cited in Berry and Nelson, see note 12 above.

^[14] American Psychiatric Association, see note 10 above, pp309-27.

^[15] Ivkovic v Rinildi & Ivkovic [1980] 25 SASR 516, 519 (White J).

^[16] Ibid, 521-2 (White J); see also City of Woodville v Balasson E [1968] SASR 147, 154-5 (Bray CJ) as cited in Ivkovic v Rinildi & Ivkovic [1980] 25 SASR 516, 522 (White J).

^[17] Uniform Civil Procedure Rules 1999 (Qld), r462(1): ‘A witness giving evidence in a proceeding as an expert has a duty to assist the court’.

^[18] Ivkovic v Rinildi & Ivkovic see note 15 above, 518 (King CJ).

^[19] Ibid.

^[20] See D Mendelson, ‘English Medical Experts in the Claims for Shock Received by Railway Collisions in the 1860s: Issues of Law, Ethics and Medicine’, (2002) 25 International Journal of Law and Psychiatry 303 as cited in Freckelton, I, ‘Regulating Forensic Deviants: The Ethical Responsibilities of Expert Report Writers and Witnesses’, Journal of Law and Medicine (November 2004) 12(2).

^[21] Dasreef Pty Ltd v Hawhar [2011] HCA 21, 56-9 (Heydon J).

^[22] See Uniform Civil Procedure Rules 1999 (Qld), Chapter 11, Part 5; Uniform Civil Procedure Rules 2005 (NSW), Part 31, Division 2; Supreme Court (General Civil Procedure) Rules 2005 (Vic), Order 44; Rules of the Supreme Court 1971 (WA), Order 40.

^[23] Fofana v Inghams Enterprises Pty Ltd [2014] QDC 224, [12].

^[24] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s237.

^[25] Judicial Review Act 1991 (Qld), ss20(2), 21(2).

^[26] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s500; Costello v Queensland Rail [2014] QSC 83.

^[27] SD Lipman, ‘Malingering in Personal Injury Cases’ (1962) 35 Temple Law Quarterly 141 as cited in Mendelson and Mendelson, see note 3 above, p30.

^[28] Motor Accident Insurance Act 1994 (Qld), s87T; Personal Injuries Proceedings Act 2002 (Qld), s72; Workers’ Compensation and Rehabilitation Act 2003 (Qld), s533(1).

^[29] Workplace Injury Management and Workers Compensation Act 1998 (NSW), s235A; Motor Accidents Compensation Act 1999 (NSW), s117.

^[30] Transport Accident Act 1986 (Vic), s116; Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s581.

^[31] Simmons v Wanless & Anor [2014] QDC 42, 19.

^[32] Ibid.

^[33] Motor Accident Insurance Act 1994 (Qld), s87T; Personal Injuries Proceedings Act 2002 (Qld), s72.

^[34] Workers’ Compensation and Rehabilitation Act 2003 (Qld), s533(1).

^[35] Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2013, clause 95.

^[36] Motor Accident Insurance Act 1994 (Qld), s59; Personal Injuries Proceedings Act 2002 (Qld), s60; Workers’ Compensation and Rehabilitation Act 2003 (Qld), s537(6).

^[37] Workplace Injury Management and Workers Compensation Act 1998 (NSW), s235A.

^[38] Transport Accident Act 1986 (Vic), s116; Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s581.