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My Disability is Real. How Do I Defend Against ‘Malingering’?
According to a 2012 survey conducted by Statistics Canada, 3.8 million Canadians over the age of 15 — about one in seven — suffer from a disability. Having a disability can make a major difference in whether a person is able to earn an income by working. Whereas 79% of non-disabled Canadians reported being employed, that number plummeted to only 49% for those reporting a disability.
Many Canadians look to protect themselves against the risk of prolonged unemployment as the result of a disability by purchasing disability insurance. Disability insurance provides a regular income when a person is so injured that he or she is unable to work.
However, like all insurance companies, the disability insurer tries to maximize its profits by denying claims. One way that disability insurers do so is by claiming that the injured individual isn’t really disabled at all, but is merely “malingering” — in other words, that he or she is faking or exaggerating a disability.
The allegation of malingering can be a frustrating one, and, unless properly handled, it can result in the loss of important benefits. But how are such allegations properly handled?
Defending Against Claims of Malingering
An insurance company will try to support its charge of malingering with some kind of evidence. That evidence may come in the form of an “expert’s” review of medical records, a medical or psychiatric examination, or photographic or video evidence that conflicts with the claimed disability.
Successfully refuting the insurance company’s charge, therefore, requires the disabled individual to build an evidence-based case against that charge. Individuals can do so by following the steps below:
1. See a doctor
Some people are content to “suffer in silence,” but this approach is a bad idea for at least two reasons. First, by suffering in silence, these individuals will fail to receive the treatment they need to recover or otherwise manage their disabilities. Second, if an individual never sees a doctor, then there will be no medical paper trail to establish the fact and extent of that individual’s disability.
That second function of seeing a doctor can be critical, especially when an individual has a disability that is not obvious to third parties. For example, the most prevalent type of disability found by the Statistics Canada survey was disability caused by pain. But pain is a subjective experience — outside observers can’t really “feel your pain.” So, it’s trivially easy for an insurance company to claim that a person is faking or exaggerating his or her level of pain.
An insurance company’s charge of malingering is much more difficult to sustain in the face of medical evidence that corroborates the disabled individual’s claim. Accordingly, a disabled individual should seek medical or psychiatric diagnosis and care, not only to help recover his or her health, but also to help protect against claims of malingering.
2. Keep a journal
The best evidence against malingering is objective evidence provided by neutral third parties, such as your doctor. But you can help bolster your claim by maintaining a journal documenting your condition. The same is true of a journal kept by friends or family describing their observations of you. While this kind of evidence won’t be conclusive, it can be useful in building a comprehensive case proving your disability.
3. Hire a lawyer
Hiring a lawyer might be the most important step in defending against claims of malingering. This is because a long-term disability lawyer will have experience in how insurance companies try to prove malingering and can develop a strategy to rebut those efforts.
This strategy will include gathering the types of evidence discussed above, as well as:
- Hiring expert witnesses who can diagnose a disability, speak authoritatively to the scope of the disability, and refute the insurance company’s own experts.
- Gathering collateral evidence from friends and family, such as their testimony concerning changes in an individual’s behavior or day-to-day activities.
- Challenging the insurance company’s evidence. Sadly, some insurance companies are not above using dishonest tactics and evidence to allege that a person is malingering. An experienced lawyer will have seen these tactics before and know how best to respond to them.
In addition, a lawyer will know how to negotiate with the insurance company to maximize his or her client’s recovery. Without a lawyer, the insurance company may try to intimidate or coax an individual into accepting a settlement that is less than he or she is entitled to. Lawyers understand how insurance companies do this and can help their clients respond effectively.
Does Your Insurance Claim You’re Malingering?
If your insurance company is trying to avoid paying you what you are owed by claiming you’re malingering, contact the experienced Toronto long-term disability lawyers of Preszler Injury Lawyers today. We offer free consultations to help you understand your rights, and you don’t pay us at all until we obtain a recovery for you.
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