In order for a person to be compensated by a public compensation plan or an insurer, his sequelae or incapacity for work must be the subject of a medical report. Medical expertise thus plays a central role in the compensation process.
But what happens when an expert opinion concludes that the simulation is simulated? This capsule introduces you to this concept and explains how to assert your rights.
What is simulation?
When an expert evaluates a person, he/she performs tests and asks questions in order to draw an accurate picture of the sequelae or functional limitations that affect the person. If the expert considers that the pain or problems reported by the person are not objectively supported by the assessment, he may conclude that the person is faking, that is, that he voluntarily invents his symptoms. This is called simulation.
The concept of simulation raises important issues. In the scientific literature, it is argued that it is contextual motivations that explain why some patients simulate or amplify their symptoms. For example, a person could feign pain in order to be declared unfit for work, to gain financial gain or to obtain attention or help from relatives.
However, while some individuals may have incentives to simulate, compensatory parties may be tempted to invoke simulation in order to avoid having to pay compensation. Since both parties have contrary motivations, it is essential that the expertise that evaluates whether a person is simulating is rigorous and reliable.
Simulation detection
There are various tests that are supposed to detect if a person is faking. In order to assess a person’s functional abilities, the expert may ask them to perform exercises that measure their strength. He then evaluates if the strength is constant over the exercises or if it varies. A person who exerts maximum effort is assumed to have a force that varies according to a curve. If a person’s strength is constant, it is judged to limit their efforts. From these tests, the expert can conclude that, if a person’s strength is constant, it shows that he limits his efforts and, therefore, that he simulates.
However, some critics argue that there are several possible explanations other than simulation for the fact that a person limits his efforts during tests. For example, limiting effort may result from a fear of being in pain or re-injuring oneself. It is therefore difficult to separate the simulation from other possible causes.
Another frequently used test to detect simulation is the Minnesota Multiphasic Personality Inventory (MMPI) and subsequent versions such as the MMPI-2-RF. This test has validity scales designed to detect cases where a person exaggerates the prevalence or severity of their symptoms, both psychological and physical.
The validity of these scales to detect simulation has been the subject of scientific debate for several years. While some scientists claim they are reliable, others warn against using them. Among other things, these tests are criticized for being based on studies that have unreliable samples since they do not allow to distinguish with certainty the participants who simulate from those who do not simulate, as well as not having been sufficiently tested for certain problems such as chronic pain. According to critics, these scales present risks of false positives. False positives are problematic because they can lead to some people being denied the fair compensation to which they are entitled.
The role of the courts in the face of expert opinions
It is important to note that if an expert concludes that a person is faking, the person does not necessarily lose his or her right to compensation. Indeed, if the insurer, the SAAQ, the CNESST, or any other compensation organization decides to terminate the benefits because an expert has concluded that the simulation has occurred, it is possible to contest this decision and to present to the court one or more other expert opinions to refute this conclusion.
In the judgment Proulx v. Desjardins Financial Security, the applicant was placed on leave from work because she suffered from migraines and fatigue. Desjardins, his insurance company, had given psychologist Jacques Fournier the mandate to carry out an expertise. Dr. Fournier was presented as an expert in simulation. In this case, as in several others where he was required to conduct an expert opinion, Dr. Fournier had concluded that the plaintiff was faking. Desjardins then cut the plaintiff her disability insurance benefits.
The Superior Court recalled that, as established in Carpenter v. Standard Life Insurance Company, the court must consider all the evidence when assessing whether a person is disabled, both expert evidence and lay evidence. The presence of an expertise conclusive to the simulation is therefore not decisive. In the presence of expert opinions reaching contrary conclusions and other evidence, it is therefore possible that the court will not conclude that the simulation is simulated.
The court ruled in this case that Dr. Fournier’s expertise concluding that the simulation was not supported by the other evidence and had not been carried out rigorously:
[123] The Tribunal notes that the tone generally used by the expert in writing his report, such as his insistence on discussing the simulation – at the same time as he does not evaluate the numerous clinical tests of MMPI-2-RF – suggest that Dr. Fournier was on government duty there. The answers on the last two pages of the report – and in particular page 17 – demonstrate a lack of rigour and a certain complacency on the part of the expert.
Thus, even though Dr. Fournier presented himself as an expert in simulation, his conclusions could not escape examination by the court. The court rejected Dr. Fournier’s expert opinion and ordered Desjardins to pay the plaintiff the benefits it had refused to pay. The judgment highlights the way in which insurers can be inclined to support the simulation hypothesis as well as the importance for the courts to assess the quality of the expertise presented in support of this hypothesis.
Your rights in this regard
If an expert has concluded that you are faking and that you have lost your benefits for this reason, you are not without recourse. You can contact our lawyers who will be able to help you challenge the decisions in question. However, it is important to act quickly in order to respect the deadline for exercising your recourse.
In addition, to better protect yourself, when your insurer or a public compensation body has you evaluated by an expert, you can record the session. This will make it easier for you to challenge the quality of the expertise carried out in the event that it contains gaps or defects. Indeed, the law allows you to record a conversation to which you are a party. It is not mandatory to notify the expert that he/she is registered or to ask for his/her consent. For more information on recording communications, see our Capsule on the subject.