FRAUD
AND MALINGERING IN THE
DISABILITY
- COMPENSATION PROCESS
K.SILADASS
of Lincoln
of States of Malaya ,
Advocate and
Solicitor
Many years ago
a person who suffered fractures to his tibia, fibula and femur in an accident
called on his solicitor on the eve of the trial. He had recovered well from his
injuries. He could walk without the aid of crutches, although there was slight
noticeable limp. However, on the day of the trial he arrived in court on
crutches. His lawyer was shocked; pulled him aside and asked: “What happened?
You were perfectly alright yesterday, you had no use of the crutches: but why
today?”
The answer the
injured gave was: “The judge must know how painful it is to suffer injuries to
the legs!”
Counsel
realised that if he were to put his client in the witness box he would damage
his own case. Hence began a quick negotiation with the defence counsel,
conceded insignificant degree of contributory negligence and settled the
matter. After settling the matter counsel for the defence remarked: “Your
client was seen playing football without crutches last evening.”
The
word "fraud" means criminal deception, the use of false
representation to gain an unjust, advantage, a dishonest artifice or trick;
hence the word imports criminal intent. It is not my intention to give the word
fraud its meaning as it is understood in the ordinary way, but to look at its
function in claims for damages whereby the word ‘fraud” could have a meaning
bordering an intent which is avarice with a shade of deception.
The
word “fraud” used here does not refer to the “fraud” defined as having criminal
intent; but, we must look at that word within the context of personal injury
claims where it could acquire a meaning identifying an intent to lie, malinger
to enhance one’s claim for damages resulting from accidents. This fraud and
malingering, to my mind, are two words with the same intent and that is to
magnify the pain and suffering and the resulting physical disability to an
extent which is ordinarily unthinkable. If a person does a thing knowing it is
wrong yet does it with the intention to deceive, if it is not cheating than
what is it?
Needless
to say that where the injuries are severe and expert evidence is sought in
order to measure the level of pain and suffering: that, I believe is entering
into a subjective arena. We are unable to ascertain the extent of the pain an
injured person undergoes and the suffering resulting from the pain. The medical
experts could carry out various tests to ascertain, verify the extent of the
pain and suffering resulting from disabilities, but if the injured person
feigns pain which is not there how could the medical expert confirm that a
person degree of pain. I am not aware of any equipment that could be used to
measure pain and suffering.
In
normal parlance the word "pain" is defined as a strongly unpleasant
bodily sensation such as is produced by illness, injury, or other harmful
physical contact etc., the condition of hurting. Examples are given of a
particular kind or instance of pain and that is suffering from stomach pains,
mental suffering or distress. Turning to the word "suffering" we find
it means undergoing pain, grief, damage. Thus, we can come to the conclusion
that pain leads to suffering and suffering emanates from pain and both pain and
suffering come from one source and that is injury.
We
also know that an injury will cause pain but suffering could be different
because of the nature of the injury or injuries the pain could be lingering on
with the attendant suffering. Therefore, lawyers and judges decided that pain
and suffering should go together. Thus, in law pain and suffering are fused and
indivisible[1].
However, when it comes to a person who
is paralysed, he no longer experiences pain but would suffer psychological
discomfort for being unable to move around. Where it is paralysis, or where the
injured person had suffered severe injuries it is possible he or she may have
lost the sensation: thus, no pain, but the element of emotional pain and strain
cannot be discarded, and we are in a dilemma as to how to assess the emotional
pain, yet the law recognizes the fact that the suffering in such cases is
inevitable.
Let
us take the case of a person who is paralyzed from waist downwards. There is no
sensation and he experiences no physical pain; but when he thinks of his
disability the emotional stress is a terrible pain which needs to be
compensated and that is the best the law could do.
On
the other hand a person would have suffered serious compound fracture to his
femur and tibia and fibula, they may have healed with the bones united but the patient
could continue to complain that he experiences pain on and off. The doctor
believes him and prescribes some pain killer. Today, with the advancement of
physiotherapy, the patient could be advised that he should go for some simple
exercise which could eventually alleviate the pain. Would the patient go for
physiotherapy or would he be contented by taking pain killer retaining the pain
so that he could get better compensation?
We
all know that doctors will give their opinion based on the patient's injuries, how
well the wounds have healed satisfactorily and when he should be fit to resume
his duties.
Can
doctors go wrong in their findings? The quick answer should be: No. Doctors
only record the findings of the injuries to the body. What about the damage to
the mind? I believe this may take some time to evaluate with constant
observations on the behaviour of the patient. But, there have been cases where
doctors too had gone made incorrect findings. There was a case when a young man
of eighteen years old suffered fracture to his leg tibia, fibula and femur. They
were very bad. The orthopedic surgeon who examined him noticed that the young
man spoke with a stammer, and strangely he concluded that the stammer was a
result of the injuries he had sustained. When checked with the young man’s
father he confirmed that his son had the stammer since childhood.
So
what do we so? We could go back to the surgeon and point out that the stammer
was there before the accident, and this would embarrass the doctor. Since this
expert opinion had already been forwarded to the insurer’s solicitors what
would be their opinion if we were to hold on to the report and go to court. It
was obvious the whole of the surgeon’s report would have been subjected to
critical scrutiny and the chances of it being totally discarded were staring at
us. A quick conversation with the insurer’s solicitors was had and a compromise
reached. The stammer would not be taken into account and the matter was settled
on the basis of the injuries to the fractures.
The
patient is gainfully employed. Because of the accident his income is not
reduced, as he is paid; but will not the subjective element of pain and
suffering lead him to mislead everyone and feign pain. This kind of situation
arises where the patient's doctor gives one opinion and which opinion is doubted
(or challenged) by the insurers' doctors. Perhaps we should find a median
course to have specialist appointed by the court to assess the extent of the
disabilities, in case the parties themselves cannot come to decision on the
selection of a neutral expert. This is the recommendation made at the
convention of a similar seminar a few months ago.
The
present problem is that those who have suffered injuries in an accident do not
see the situation as a misfortune. They think it is a God sent or windfall. Perhaps
a lottery.
The
rational underscoring the concept of damages is to compensate the victims which
would help to rehabilitate them and return to society with hope to continue to
enjoy life as before. Compensation is meant to help recover from a hopeless
situation into a hopeful future.
I
would say that when an injured person exaggerates, or feign continuous pain and
suffering that is in fact malingering, and to some extent committing a fraud
they go hand in hand.
It
is true that accident victims tend to imagine incapabilities and illness
thinking that the state of affair would increase the amount of damage. Partly
this is due to the fact that solicitors themselves who are acting for injured
persons in order to retain their clients’ confidence give false hopes and they
in turn become a source of infinite irritation.
As
I have pointed out earlier the compensation for injuries are meant to help the
victims to return to society; although they may have suffered serious
incapacities. Incapacities could be either transients or permanent. What is
happening is that transient disabilities turn out to be permanent disabilities
and this could only happen when the injured person with a view to increase his
chances of better compensation feign his physical disabilities. This has been
said to be a sort of compensation neurosis, meaning, because of the
compensation he is expecting the injured person is unable to accept the fact
that he has been cured but imagines that his disabilities are continuing and
are severe. You can send him to the very best physician or surgeon in the
country but the psychological compensation neurosis is hard to be cured. It can
only cured with the compensation and
that too with huge compensation. I believe he should be the best candidate for few
visits for psychiatric evaluation.
Pure
malingering is a situation when the injured person anticipating compensation
would stay away from work. But, look at a situation where a person falls off at
his home and fractures his leg. He cannot go to work, and since the accident happened
outside the place of employment and not during the course of employment he will
not get any compensation. He would not be entitled to social security benefits.
Perhaps, social security should also consider claims of this nature. But, let
us see the victim’s right as it is. He has no personal accident insurance
coverage, no hospitalization benefits. He has a family to support. What would
he do? He will want to get back to work as quickly as possible. That is the
position, I believe, when one is in real distress. Compare his position with an
injured person in a road accident involving a motor vehicle you can see the
different mental attitude.
Another
common area where insurance claim fraud could be very prevalent but gone undetected
is the damage to vehicle. I have in one of my essays titled: “Accident victims
and Their Plight” highlighted the problems that haunt the legal profession [and
fortunately here the doctors are spared of their opinion] and the insurance
companies.
In
his keynote address at a similar seminar held recently Tun Hamid Mohamad, the
former Chief Justice of Malaysia pointed out that:
“The claim ratios for the third-party bodily
injury and death have exceeded 200% since 2006. For the year 2012, the premium received
by the insurance and takaful industry for third party bodily injury is
RM832.6 million while claims amounted to RM2.02 billion which gave the claim
ratio of 242.1%.[2]”
This is a daunting figure and we must ask the question who is at fault?
In personal injury cases one judge canvases magnanimity in awarding damages
without realizing accidents are facts of life and in a world imbued in science
and technology accidents have become part of the natural hazards and perfect
compensation is not the answer. Equating damages for personal injury with
defamation, that is to say, injury to one’s reputation is wide off the mark.
Physical damage to the body and injury to reputation are poles apart. Bodily
injury would heal but the injury to one’s reputation inflicted by word of mouth
or by writing can never be equaled; for defamatory injury is deliberate whereas
bodily injury is accidental. This distinction should not be lost sight of.
Returning to the manner repairs to damages vehicles I would relate a
couple of cases which have been brought to my notice.
In one instance there was an accident and the front part of the car was
damaged. The insurers decided to write off. Paid off the insured. As far as the
insured was concerned the matter ended there; but it did not. A few years later
a letter comes stating that road tax and insurance had been renewed and that
too under his name who had transferred away all his interests in the car. The
insured wrote to the Road Transport Department and placed it on record that he
is no longer the owner having signed away ownership some years ago. No
response. Letters to the insurance company too produced total silence.
After another few years arrives another letter indicating the renewal of
the insurance and road tax under the name who had parted with his interest. He
decided to go to court and get a declaration that he is no longer the owner of
the vehicle. The insurance company appeared and finally settled the matter on
paying costs. The consent order was sent to the Road Transport Department. Some
years later arrived a letter from the Road Transport Department and the
insurance about the renewal of insurance and the road tax. Once again the Road
Transport Department was reminded of the sequence of events and the order of
the court that had been obtained. I leave the entire matter to your
imagination.
The second case is where there was an accident and the coverage had
excess clause. The repairer ensured that the insured need not pay the excess,
he would take care.
I could not think of any better examples but to show how deep fraudulent
activities have seeped into the area of damage to vehicles and the cost of
repairs. How do you think this sad state of affair could be avoided?
Would it be appropriate that anti-corruption legislation should be
extended to private sectors too?
I would conclude my presentation with two cases: One was a lady of about
thirty odd years. She met with an accident when she was about twenty eight
years old. She was married and had children. Her main injuries were to her leg
which had healed without any residual disability. The other injuries were,
according to the medical reports to her forehead. She was offered a sum of
thirty thousand ringgit, and this is in the mid-eighties and the offer was
fair; but the client was not happy and she came to me. She complained about the
injuries to her face. I took a closer look but could not trace any scar. She
was still with her husband and they were living happily. I brought out a file
on a girl of less than eighteen years old a victim of hit-and-run. Her two legs
had to be amputated. MIB offered an ex-gratis payment of ten thousand ringgit.
I showed this young lady sitting in front of me of the agony the little girl is
going through and having lost her two
legs she is only offered ten thousand ringgit whereas you should be more that
satisfied with the offer made compared to the girl’s injuries yours were indeed
insignificant. She said she will accept.
In another case a young man from Singapore
I started off by telling you
about a Claimant who had suffered injuries to his lower limbs. I will conclude
with an anecdote of a person who had injuries to his upper limb.
A plaintiff whose hand was
injured in an accident was giving evidence in court on his claim for damages.
His counsel asked him: “After the accident how high can you raise your arm?”
The plaintiff with great difficulty and grimace on his face raised his arm upto
shoulder high. In cross-examination he was asked: “Before the accident how high
could you have raised your arm?” He raised his arm to the fullest.
Ladies and Gentlemen that is
the inherent hazard in legal profession.
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