Two Challenging Dilemmas

September 16, 2013

I have been doing this work for more years than I care to remember. Recently I discovered that I have written 23,000 reports since 1996. My mind boggled (I have used that term for years and never knew what it means. According to the Merriam Webster dictionary it means: to be surprised, confused, or alarmed (esp in the phrase the mind boggles) well that seems to express what I thought. But as someone said of Vivaldi ‘he didn’t write 600 concertos, he wrote one concerto 600 times’ was I merely repeating myelf ad infinitum!  But I digress. Nevertheless, I am still confronted with challenges, not least dealing with some claimants. I thought you might be interested in hearing about two recent situations, one of which turned out badly. I have de identified these as much as possible, not least because of fears of retribution from one of the claimants!

The first involved George, a middle-aged man who I had seen two years previously. He claimed to be a hard-working man with a wife and three children who was a factory worker. He had been injured in a rear end collision in 2009 that seemed relatively minor ($700 damage to his car) but that had left him with a neck and back pain to such an extent that he had been unable to work. He had had a variety of treatment with no evidence of any marked improvement. Was asked directly as to whether or not he or any members of his family had made any WorkCover, transport accident or personal injury claims and had answered “no, no and no.”

I was asked to provide a supplementary report for George and sent a bundle of report, some going back to 1990. It turns out that this “hard-working man who had been in virtually continuous employment” had had a back injury at work in 1990, was off work for eight years during which time he received WorkCover payments and then a disability support pension. He had three previous transport accident claims. His wife was not working because of a work-related back injury and was receiving WorkCover payments. His two brothers similarly had work-related back problems and were receiving WorkCover payments.

On the face of it, to say the last, there was a disparity between the information he provided and the information in the documentation. How to proceed? Do I write a supplementary report based on this documentation or do I see him again?

When there is any question about credibility you have to see the claimant. People always get things wrong, it is fascinating to interview different members of a family about the same event because you find that they all have a different version of what happened, the Rashomon effect, a term that has been used by scholars, journalists and film critics to refer to contradictory interpretations of the same events by different persons, a problem that arises in the process of uncovering truth.  It is named for Akira Kurosawa‘s film Rashomon, in which a crime witnessed by four individuals is described in four mutually contradictory ways. As a barrister friend of mine told me “you can never rely on eyewitnesses”.

I reckon that in 95% of my interviews people get facts wrong, sometimes important facts that have no bearing on their claim and at other times facts that may be relevant. On a number of occasions when I have re-interviewed somebody about some missing information their response has been “well I didn’t think it was relevant”. In many cases they are right and of course we are always dealing with people who are having their privacy invaded and know that they have no confidentiality.

I do a bit of a juggling act if I recognise that people are reluctant to give me some information. I will say something like “look, tell me in general terms what this is about. If I don’t think it’s relevant I won’t write it down, but if I do think it relevant I will use a form of words that you are comfortable with.” I saw Harry, a man in his early 30s from a strict religious background, for a transport accident on behalf of his solicitor who was also his father-in-law. Harry told me that he had used recreational drugs over the years but not recently. He suddenly realised what he had said and asked “will this go in the report?” I said that it would. He panicked because he realised his father-in-law, who was strictly opposed to drug use and very close to his wife would find out about this part of his life. I told him that I would ask him about it in more detail and that if I did not think it was relevant I would not only not put it in my report but I would not have it in my written notes. He told me about some relatively minor drug use between the ages of 18 and 23. I ostentatiously tore up the sheet of paper I had been writing on having first shown to him and ripped it into small pieces for effect and shoved it in the bin. He was reassured and the interview continued. By the way, there was no mention in any of the other documentation about his drug use. If it had been mentioned I would have been obliged to make some comment about it in my report.

On another occasion I struggled with the dilemma of whether or not to record in my report that Peter, a man in his early 40s, had a mother who had died of AIDS. His mother had been infected by her partner. This was information that was closely held within the family circle. This information was also not in any of the other documentation. His mother had died some 15 years previously. I did not consider his mother’s death was relevant to his work injury and its aftermath. I recorded only that his mother had died of an infection.

What have these stories to do with my dilemma with George? The point I’m making is that other reports can appeared damning but they can also be wrong. If you assume that the information in the report you receive are accurate think again. It is astonishing how many errors are in reports, some trivial but also some important. The more accurate your report is about the small details the more credible it is to do with the important issues and your opinion!

So, I saw George again. At this point it became an anticlimax. He could not disagree about the previous work injury, his family history of work injuries, he remained evasive about whether or not he was working at the time of the accident. I asked to see his CentreLink benefit card and found that he had been granted a disability support pension in 2004. He reluctantly admitted that he had not worked since then. I always ask to see the CentreLink card because the date will often tell you when the benefits started although the benefit may be a New Start Allowance initially and later becomes a disability support pension.

In my report I made it clear that because of concerns about credibility I was not able to form an opinion about whether or not he had a diagnosable psychiatric disorder. I did not say he was a liar, a malingerer, a psychopath or that there appeared to be a family culture of rorting the system. Avoid using any of those loaded terms. It’s quite sufficient to indicate that your opinion has to be based on the accuracy of the information that you have been provided and if that proves to be incorrect you cannot form an opinion.

The second situation was with Angelo, a man I saw for his solicitor who had a WorkCover claim as a result of a road rage incident in which he claimed he had been assaulted and had been left with mental and physical injuries. I had read the documentation with an increasing sense of gloom. He came from a grossly dysfunctional family with a violent alcoholic father and an emotionally absent mother. He had been in and out of prison serving at least 10 years in all. His work record was very patchy but he had become a union organiser. At the time of the alleged injury he was working as a van driver and had become involved in an argument about a vacant parking spot. There had been some pushing and shoving and he had tripped backwards over the curb landing heavily on his back. He was claiming post traumatic stress disorder and a back injury. One thing in his favour was that he was the custodial parent to his two children.

He arrived at the interview 25 minutes late. There was a minor breakdown in communications with my office manager and I did not realise he had arrived for another five minutes. Normally when people arrived at late I make another appointment but on this occasion, because of my own stuff up I reluctantly decided to see him.

He looked like Bruce Willis with the leather jacket, shaven head, designer stubble and wraparound mirrored sunglasses. I went through my usual spiel about confidentiality et cetera. He was the sort of man who tried to physically dominate and his body language reflected that. He sat tall with an expressionless face and spoke in a monotone. I realised there was trouble when I asked him about the ages of his children. The few people who have been truly obnoxious to interview always seem to cavil when requested to provide family information but we had negotiated his parents and siblings, and indeed his ex-wife, relatively comfortably. I had asked him the birthdate of his daughter. I always ask people for the birthdate of the children because it gives me some idea of their closeness to their children and their long-term memory but also it provides me with a chronological pointer. It means I can say something like “so how old was your son when you and your wife separated?”

He told me that his elder child, a son was born on 13 April 1998 and was 14 years old. Without thinking I said “no, he must be 15 years old because he was born in 1998 and it is now 2013.” He said with menace, “he’s 14!!” I was a bit slow off the mark and said well he must have been born in 1999! He was insistent that he was born in 1998. I then realised this was a big issue for him, I have no idea why. Maybe he thought I was saying he was dumb! I just don’t know. He had another son and I remember thinking “Will I or won’t I”. I decided to go for it. “So when was your younger son born?” He told me his younger son was born in February 2002 and that he was 10 years old. I can remember hesitating, do I leave this issue because it seemed so fraught for him or do I mildly challenge him. You must remember that by this stage I was feeling a little pissed off myself. I found this guy menacing with an undercurrent of deep hostility (that I knew was nothing to do with me). Considering that I was seeing him for his solicitor he seemed, at best, very unhappy about seeing me.

In the end my need for accuracy won out and I found myself saying “wellll, he must be 11!”

Bruce II exploded in rage. He abused me, swearing and telling me he was sick of all my f…ing questions. I told him to control his behaviour or he would have to leave. He chose to leave and slammed his way out of the office. He left a final legacy, he spat on the door leading to the lift.

I must admit I was not unhappy about him going. I anticipated a very long and difficult interview. I anticipated I would have to be asking him about his convictions, his record of aggressive behaviour and so forth.

The question was then what to do to clean up the mess and not just the spit? I telephoned his solicitor immediately and explained the situation. The response was apologetic. I then wrote a report indicating all the information with which I’d been provided and stating what had happened during the interview and made very sure that I did not use any psychiatric terms in describing his behaviour (see the consequences of not doing so). I wrote that I had not seen him long enough to form an opinion. I felt surprisingly calm. I was grateful that he had not smashed anything in the office or on his way out.

In retrospect I should have approached him with more care. I should have explained that because he was 25 minutes late it was unlikely that I would be able to complete the interview and would have to organise an additional time. I should also have spelled out in detail what I would be asking him during the course of the interview. All this is in the documentation sent to him by his solicitor that had been provided by me but who knows whether or not he read it. If I knew that I had given myself extra time I may have been less pressured and have resisted pushing him. If I had been more “with it” I would have picked up his irritability and confronted it directly. I would have said “you seem irritable, can you tell me what that’s about?” He may or may not have responded but at least I would have had more control of the situation-I think.


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