The IME and not the injured worker is malingering!

malingering

Don’t you hate these defense IMEs (Independent Medical Examiners) who claim their “science” supports the conclusion that you, the genuinely injured worker,  are a bold faced malingering liar. Oh dear, don’t get us started on this one!

The IME and not the injured worker is malingering!

Did you know that one very common workcover insurance tactic is to send you to an IME, with a pre-written cover letter stating that “… it has been suggested that the worker has a psychological overlay…” or something along those lines. Even if there is zero evidence of this “psychological overlay” and even when not a single treating doctor or other IME has ever mentioned anything along those lines! Well… the insurance company (case manager) is basically desperate to have you classified as a malingerer! (especially where there is no gotcha! video surveillance).

What is malingering exactly?

According to Wikipedia, in medicine, malingering is fabricating or exaggerating the symptoms of mental or physical disorders for a variety of “secondary gain motives, which may include financial compensation (often tied to fraud).

The most official definition of malingering is, in the context of workcover, basically an injured worker who meets 2 out of 4 criteria:

  • The injured worker is involved in a law suit
  • The injured worker’s  claimed level of disability is different than one would expect based on objective findings
  • The injured worker was not cooperative during the exam, and/or
  • The injured worker has some sort of anti social personality disorder

The defense IME and malingering

It is not unusual that the IME doctor retained by the defense (workcover insurer) will claim that the injured worker’s condition exceeds what one would expect for the physical findings.

malingering-2However, in most cases this will require the defense IME doctor to completely ignore the majority of the evidence, starting with the injured worker’s treating doctor(s). But the defense IME doctor, who acts as an ‘expert’ witness will only rely on other shady defense IME experts to claim the injured worker does not have a real physical condition.

There is a name for this. It’s called “confirmatory bias”¹ (…well, actually we call it bullshit!) which exists when an individual ignores all data and information that is contrary to the conclusion s/he wishes to reach.

(¹) Confirmation bias is a phenomenon wherein decision makers have been shown to actively seek out and assign more weight to evidence that confirms their hypothesis, and ignore or underweigh evidence that could disconfirm their hypothesis.

Now, for someone to modify their behavior, i.e. act in a certain way to get desired results, that modification is most successful if there are rewards that are direct, immediate and constant. Now think about this:

You were injured in 2010. It may take 5 years to get to Court or settle you case. Even then, the judge/ jury may not make a judgment in your favour.
So, the benefits are not:

  • Direct
  • Immediate
  • Constant

But hey, wait a sec!
Doesn’t the defense IME doctor get paid right after, or even BEFORE the examination? I.e. the defense IME’s reward is:

  • Direct
  • Immediate

Think about it: Has the defense IME doctor not received payment in ALL cases and doesn’t he or she make millions over the years from the defense?
Thus, yes, the rewards are direct, immediate and constant!

So, the one who has the most motivation to modify their behavior (i.e. Lie) is THE IME DOCTOR.

“By the way, dear IME doctor, did anyone administer a test to you to see if you were being honest?”

You can also go down another road guaranteed to get a chuckle in court:

Q: Doctor, have YOU ever lied?
Pause….
A. No. Not since I was a child.
Q: How old are you?
A. 58
Q: So you are saying you have NEVER told a lie in 40 years, never fudged a bit if your wife asks, “Does this dress make my bum look fat?”
A. Correct
Q: Doctor, are you aware that if you answer a question on the (MMPI2 – a malingerer test) indicating you have never told a lie you get a point towards being a sociopath because EVERYBODY LIES?
Pause…
A. Yes.

Or

Ok. What if the IME doctor admits to telling a lie?

Q: doctor, you’ve taken no test yourself in this case to tell us if YOU are honest, right?
And just because you lied in the past, you would not suggest that we cannot count on anything you have to say here today, right?
A: correct
Q: so even if the injured worker DID lie in the past, it doesn’t mean we should reject what s/he has to say here today either, right?

 

smiley1

 

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[Post dictated by WorkcoverVictim and manually transcribed on WCV’s behalf]



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10 Responses to “The IME and not the injured worker is malingering!”

  1. I note the IME I intend to complain about is listed in your IME list; his name is highlighted. I was told by the insurance co.’s surgeon that he is an orthopedic surgeon and a “Mr.”, but you have him listed as a “general surgeon” and a “Dr.” His name is Peter Battlay. I could not find a star rating for him, but I would definitely give him a ‘1’! What exactly is he? Does anyone know for sure if he still practices and at exactly what, apart from being an IME? Have others complained about him? He is the one that “assaulted” me (2 pressure tests that were more like a standing up arm wrestle -he actually braced himself against an antique patient’s examination table/bed to push hack at me – and I told him hurt after the 1st one, but he repeated it a 2nd time regardless, then he reported that I “did not show sufficient pain”, or something similar “to restrict movement”. A friend said I should have just screamed. (This may have to be taken down before being posted up publicly as the details of my complaint make me easily identifiable, but I would like to know if others have complained about him.)

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    • @Sarah Janes, this IME is lised on rateanmd as a GP, and by Comcare as General Surgery; Spine, Hand soft tissue injuries….
      Maybe he is a general orthopaedic, no idea, maybe he is a GP.
      Well known shady character though and we urge you to make a formal complaint with VWA

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      Workcovervictim3 October 6, 2014 at 4:37 pm
  2. I’m currently in the position of a Psychiatrist (IME) giving me the all clear to go back to work despite my injury being a physical one; all the Doctors I’ve seen regarding the physical side of the injury say I cant and will not ever likely be able too return to work but the insurer is relying on the psychological report!
    The Insurer intends to cease all payments and medical based on this report so I expect I will have to apply for conciliation and possibly have to eventually contact a legal firm to take it to Court if it is not settled at conciliation.
    It all sounds a little odd I know, a bit like an Optometrist diagnosing a Foot problem! just goes to show the desperate length’s to which the insurers will go to put you under pressure and get you off the Book’s any way they can.
    All this while representing/ acting as an agent for our Victorian Government!
    Corruption is alive and well in the Victorian WorkCover sector.

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    • Corruption and collusion are rife within the system. If they terminate your entitlements you can apply for Concil and then bypass Court and got straight to the Medical Panel for a determination if it’s a medical issue in dispute to save on costs froma long drawn out Court process. I can’t see how they can terinate your injury if physical from a Psych report. At worst they should just be able to cease treatment and/or meds if there is still a work related physical injury that is causing u an ongoing incapacity for work. Be careful tho bc the strategy they may be using is to try to get the Psychiatrist to say you have a psycho-somatic injury and re-label your symptoms from your physical injury something like fibromyalgia and/or some form of somatisation disorder. This is one of their latest tricks. If they can have your symptoms re-labeled then they will claim it is no longer work related and hence you are not entitled to any further compensation. The slimy nasty little pricks sit around all day using fund money to create such strategies. They will lie and manipuate any and all of your medical history to get whatever diagnosis they wish from one of their corrupt IME’s. Beware of this strategy and be prepared in advance.

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    • @Jo – this happened to me as well a few years back. My physical condition was very serious and was certified unfit by my own treaters and the physical IME, but they sent me to a psyh IME who, miracuoulsy, stated I was fit for ‘volunteer work’ with view to RTW. At the time I was freshly operated and walking on 1 crutch (for leg op) and right arm in sling (shoulder op). The surgery had failed and my arm was literally dangling out of its socket at the time of the psych IME. The psych IME had no regards whatsoever for my physical injuries. After the psych IME I was constantly harassed by my CM to RTW and threatened to be cut off. Eventually my treating surgeon wrote a letter stating that no one on their right mind would make me work, whether volunteer work or other. It did not even go to conciliation after that letter.
      But in your case, as Marina/Sybil states, please appeal the matter at conciliation (in Vic) and they may sent you to a medical panel if they can’t agree at conciliation. You will WIN. Get workcover assist involved as well (Vic) for the conciliation.

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      Workcovervictim3 October 6, 2014 at 4:31 pm
      • Thank you both for your replies, if it gets to conciliation I will ask if it needs to be referred to the medical panel as I have been there before for an assessment.
        I can’t have some sort of a psychological syndrome just causing the pain as the injury is very clear on CT and MRI scans of which the medical panel has already seen, They have also said it is permanent.
        When reading the Insurers notice of termination they have taken sentences from some medical reports and used them out of context or changed them to suit themselves; I didn’t think that would still happen nowadays?

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        • @Jo, If you already have a Medical Panel assessment, why are they doing this…. (not a question there..) Have you requested a review based on the medical panel report? You can do this at the same time you apply for Conciliation, one of my earlier CM advised of this…
          Sometimes prior reports are overlooked when they make decisions or they are using delaying tactics for funding or trying to reduce payments for your case.
          I recently had a conciliation booked for a Monday and the Friday before my insurer changed their mind and agreed to my treatment.. Their delay has cost me my job and they won’t pay me anything towards lost wages, so now I have to wait for my matter to reach mediation and the courts…

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          • just because you have been sent to a medical panel before doesn’t mean you can’t be sent again, depends on why you were referred to the medical panel and what specific questions they were required to answer the first time. you can be referred again for them to answer different questions.

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            • Yep Bullied is right and I’ve heard from WorkCOver Assist that the Insurers are going thru old Claims and if they can getting anything they can together (even fabricating) to get you terminated. A Medical Panel Decision may not stand up anymore if the Insurer can allege that your symptoms NOW are no longer work related. They also have been terminating Claims based on 130 week termination (I don’t understand) and having people re-assessed and having to go before the Medical panel again. Be careful bc the Medical Panel are only IME’s and IA’s that we already know are not independent and as Bullied points out the questions asked of the Medical Panel are VERY VERY important in the outcome and how that will affect you. Just because it was favourable the first time, does not mean it will be easy the 2nd. You always need to be thinking ahead and trying to work out what their strategy is. Be careful even about volunteer work, another trap. Even though it would do most of us good psychologically, if u have a “capacity” to volunteer, then you also according to them have a “capacity” for work. I know it’s illogical bc a volunteer position may allow you to do whatever hours you can whenever you can and not rely on you being reliable or consistent but work certainly does. It’s a legal mine field. (I was told about the volunteer work issue by a Solicitor, so the advice is sound).

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          • Woowoo, try to FOI the documents from them. Do FOI not ACA as they have more power to make them produce the documents should they try to refuse to provide them or claim they are internal working documents. I can almost guarantee that they had no valid medical or legal reason for their decision hence why they withdrew it so close to Concil. If it had got there then they can have a determination made against them.

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