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Genuine, Fictitious, or Malingering?

I’ve heard of people exaggerating injuries looking for a big payout. How do the courts determine if someone is exaggerating their injuries for attention or monetary gain?

The recent case of Ma v. Haniak (2017 BCSC 549) involved a plaintiff who had been involved in three motor vehicle incidents between 2007 and 2009.  She was claiming approximately 1.4 million in damages. At trial, video surveillance, expert evidence, and the plaintiff’s own testimony, all called into question the reality of the plaintiff’s injuries. Additionally, she was not following the advice of her treatment team to wean off passive therapies and dependence on adaptive aids. The common thread in the experts’ evidence and the main issue before the judge was such that “if Ms. Ma’s pain complaints are genuine, her vocational future is dim. If she suffers from a factitious disorder, psychiatric intervention may assist. If she is a malingerer, her exaggeration of pain is deliberate and untruthful and no interventions will assist her.”

After analyzing the evidence Justice Armstrong found Ms. Ma to be unreliable, not credible, exaggerating and even feigning some of her claims. He went on:

[327]     In addition to exaggerating her claims, I find Ms. Ma’s testimony to be reflective of her expectations that her descriptions of pain would be helpful in increasing her damages claim and augmenting for her personal financial gain. Ms. Ma conceded that she had written letters outlining her symptoms and injuries to her doctors and requested that they keep those letters to deal with ICBC. The nature of this correspondence suggests that Ms. Ma was pain focused and intent on maximizing her compensation claim rather than on following her doctors’ advice concerning active rehabilitation and recovery.

[328]     Because this analysis deals with psychological or psychiatric conditions that Ms. Ma claims cause and/or perpetuate her symptoms, to succeed she must prove that she genuinely desires to be free of her of these psychological conditions. The Court’s comment in Yoshikawa illustrates the burden on her:

6. If a court could not say whether the plaintiff really desired to be free of the psychological problems, the plaintiff would not have established his or her case on the critical issue of causation.

[329]     I have found that Ms. Ma has failed to establish that she desired to be free of her psychological problems.

[330]     The opinions given by Dr. Boyle and Dr. Lamba are persuasive. In part I rely on Dr. Lamba’s explanation concerning diagnosis of malingering or suffering and/or factitious disorder. He said:

In factitious disorder, the motive is interest – psychic and is geared primarily to assuming the sick role. But in malingering it is for external, tangible gains such as compensation or avoidance of unpleasant situations. It is difficult to attribute one or the other motivation in any given case. Additionally, in the context of litigation for personal injury, compensation is an inherent component and not unique to anyone plaintiff. Both types of motives may coexist in the case of fulfilled need for attention from the medical system and family while pursuing compensation.

[331]     I accept that his description of these conditions are apposite to Ms. Ma’s presentation. Her evidence concerning the widespread disabling pain she claims that has existed since the accidents does not correspond with “the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those circumstances”; see Faryna at pp. 356-357.

[332]     The multiple examples of inorganic pain signs observed by the doctors, the extraordinary claims of ongoing extreme pain levels, the video surveillance, the lack of reliable and current medical evidence, and her overall lack of reliability and credibility weigh heavily against her claims.

[333]     I find that Ms. Ma has not proven on a balance of probabilities that she suffers a chronic pain syndrome or fibromyalgia caused by the three MVAs. Based on all of the evidence, I conclude that the plaintiff claims that she suffers extremes of pain and discomfort throughout her body and which she says completely and permanently disabled her are animated by a factitious disorder or malingering.

These findings resulted in significantly lower non-pecuniary damages and past wage loss than Ms. Ma was claiming. Her claims for future wage loss and future care were dismissed.

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