We have all seen and heard about the person who is filing a claim for disability or bodily injury and they are caught on film water skiing. Scenarios like that do not make my life easier! I have watched more surveillance video than I care to recall, but rarely do I see people doing more physically demanding activities than they demonstrate the ability to do in my capacity evaluations. Thank God! Have I had to call a referral source and tell them that I think their client or patient is malingering? Sure, I have. But very rarely. Why do people think everybody is faking or exaggerating their disability? There are a few reasons in my opinion:
- In the absence of information, people always assume something negative.
- People in general (including jurors) seem to think that if they were in the same situation, they would rise above it all, so this person is probably faking.
- The McDonald’s coffee in the crotch event (which of course was a schemer campaign, but it affected the mentality of millions of Americans).
Once, I watched a video of a person I had already evaluated in my clinic over three days. The video showed him bending over and picking a few items off the floor at a construction site. One clip showed him installing tile on all fours. In my clinic during his functional capacity evaluation (FCE), he could barely bend at all, let alone get on all fours. Well, I was a little freaked out to be honest. Then I looked more closely at the time stamps on the videos. Out of eight hours that he was taped, I was only supplied with about one hour of actual footage. During the one hour, he bent over two or three times and spent about 15 minutes on the tile. His “helper” did all the rest of the work while he stood and pointed around giving instructions. When I called him and asked why he could bend in the video but not in my clinic, he reminded me that he had just spent two days driving in a car from Texas to get to my clinic for the FCE. He could barely move the next day. I forgot that part. I continued to support the conclusions and opinion of my report.
Most people don’t function at the same level day in and day out; especially in the presence of chronic pain. When watching footage, one must take unknowns into consideration including:
- Is there pain medication in their system?
- Are they having a good/bad day?
- What did they do during the hours or days preceding this video that could have impacted their level of function?
- How much pain were they in after they performed that activity and went in the house?
Remember, an FCE is used to determine one’s functional abilities related to work tasks over extended periods of time. Mowing the lawn for 15 minutes does not prove or disprove one’s ability to perform anything for eight hours per day, five days per week.
So, what constitutes a “faker?” Someone who is consciously trying to look more disabled than they are for monetary benefit. If someone is subconsciously limiting their performance for psychological reasons (attention, poor coping mechanisms, dependent personality features, etc.) are they faking? Gets a little foggy, doesn’t it? Coping skills may be a product of upbringing, life experiences or personality traits; none of which can be erased from history or changed. I have often said, “If I hit another car causing injury to that person, I get the whole person, not just their body.”
As an evaluator, I still need to be objective and unbiased. I coined a term you will not see in any text book. It’s “real wimp” describing a person that I would evaluate who would seem wimpy, but who passed the “level of effort” testing with flying colors. Oh, and they complained a lot; and I mean a lot!
Here is the take away: Symptom behaviors and level of effort are two entirely different things and should be evaluated as such! Just because there is exaggeration or over-focus of bodily symptoms doesn’t mean that person is putting forth submaximal effort!
Exaggerated behaviors are evaluated using many types of tests including Waddell Tests, various types of symptom questionnaires, and observations of self-limiting behaviors. Level of effort testing is primarily performed using statistical analysis of many types of force readings, analysis of heart rate, and observation of competitive behaviors.
I have seen very few real “fakers” but quite a few clients who exhibit some overfocus on their symptoms. As long as the criteria for “level of effort” are met, you can be assured they are trying their hardest!