An IME Alone can Support a Finding of Fraud

Monday, October 24, 2011 | 0

It was over 18 months ago when I wrote about the Diuejeste v. Dodd Plumbing decision.  My headline was “Belly aching does not equal fraud.”

Well, according to a new Florida 1st District Court of Appeal case, belly aching is fraud if claimant does the belly aching to the employer/carrier’s independent medical examiner.  Be sure to print this one out as it is very favorable to E/C’s and will be useful when preparing your IME’s in the future.

In Lucas v. ADT Security, claimant appealed a fraud determination by the lower court judge. What is interesting is that the E/C did not present any “false statement,” oral or written to the judge. All the evidence was the E/C’s IME doctor, in a written report and through oral testimony.

The IME detailed numerous points throughout the IME where he encountered claimant exaggerating and lying about her symptomology. He noted the claimant pretended that she could not walk when in the presence of her attorney. When the attorney left the room, she need assistance to ambulate.

The IME further described the exam itself as “theatrical.” In the beginning of the exam, claimant would be unable to stand/sit in one position but could stand/sit in the same position at the end of the exam. She exhibited a full range of painless motion in her exam.  Finally, all physical tests returned normal.

The doctor was asked if he believed claimant was faking (malingering in medical terms) and he responded affirmatively, without exception or reservation.

The 1st DCA detailed the doctor’s report and testimony in great detail. (All E/C adjusters should read this case and apply as a template for your IME’s to follow.)  Remember in Diuejeste v. Dodd Plumbing, the 1st DCA discounted claimant complaints at deposition–when compared with video surveillance–as fraud since there was nothing inconsistent with his “objective, painful knee condition.”

Here in Lucas, the court points to claimant’s non-verbal conduct, inconsistent with reports of pain.  This was of course detailed through the IME.  The lesson appears to be that in order to prove fraud it is better to have good non-verbal conduct than wishy-washy verbal statement.  It would be wise then to address these questions with your defense counsel and your IME in preparation of the exam.

Finally, while this case does seem to contrast the Diuejeste v. Dodd Plumbing case, the reasoning is consistent with the court’s past rulings. In fact, the 1st DCA has found that inconsistent statements to an authorized doctor (like an IME) can be considered fraud. And, the court found fraud where a claimant exhibit inconsistent pain behavior to a doctor as compared to video surveillance, as long as the doctor testifies as such. 

The key word is “inconsistent.”  Make sure the doctor views the behavior as inconsistent.

WorkCompCentral subscribers may read the opinion by clicking the case title in the sidebar.

Michael Rabinowitz is an attorney at Banker Lopez Gassler, P.A. in Tampa. This column was reprinted with his permission from his Workers' Comp Corner blog.