Zahr v TAL Life Limited

Supreme Court of NSW|2014-03-26|Before: Pembroke J

Introduction 1This is a claim under a disability insurance policy issued by the defendant. The plaintiff insured, who qualified as a dentist in Romania and now works as a dental hygienist at the Sydney Dental Hospital, contends that he is partially disabled within the meaning of the policy 'due to suffering an illness' and that he 'cannot work full-time'. He is 53 years of age. He says that the cause of his partial disability is his failure to fulfil his 'dream' of becoming a dentist in Australia, and the depression and anxiety that have accompanied that realisation. The threshold question is one of fact, namely whether in truth he is partially disabled and cannot work full-time. I am afraid to say that I have reached the conclusion that I must reject the plaintiff's contentions. 2In 2005 the plaintiff consulted Dr Kefaloukos, a general practitioner, who diagnosed an anxiety and depressive condition. Dr Kefaloukos subsequently referred the plaintiff to a psychiatrist, Dr Selwyn Smith. Dr Smith, who gave evidence in the plaintiff's case, has seen the plaintiff continuously since July 2006. I was not persuaded by his evidence. Dr Smith was steeped in the plaintiff's history and, I regret to say, imbued with his cause. His evidence was not, in my view, satisfactory. In fairness to him, however, he did not have as complete a picture of the plaintiff as was afforded to me. Some of that picture is as follows.

5The Manager's comments were as follows: Mr Zahr would like to attend professional conferences (clinical) to maintain [and] update his skills ... Mr Zahr would like to attend implant surgeries and other types of surgeries to increase his understanding of these techniques and the consequences for his post of periodo treatment [sic]. 6The plaintiff's own comments on the assessment form indicate his palpable enthusiasm for the work that he undertakes and a desire to have more opportunities for advancement and training. He wrote as follows: It would be very beneficial for me if we allocate time in order to observe different types of periodontic surgeries like implants and others. This will help me expanding my knowledge and will participate in better clinician-patient communication To be given the opportunity to attend professional conferences as part of continued education development. 7A component of the plaintiff's work involves teaching Bachelor of Oral Health (BOH) students. The performance appraisal dealt separately with this area of his work. The Manager's remarks in relation to the plaintiff's 'management of BOH students' were 'very positive feedback of BOH students'. His remarks in relation to 'goal achievement' were 'teaching at a very high clinical standard'. His overall comments were as follows: Mr Zahr teaches BOH students of Newcastle. His teaching performance is excellent, up to date and structured. He is able to motivate and guide the students and to introduce them to our oral hygiene standards. 8The plaintiff's own comments in relation to the teaching component of his performance appraisal indicate what a valued, efficient and enthusiastic employee he must be. His comments were: I keep receiving positive feedback from our BOH students. They always wish if their allocated time in our Department is longer than what they have scheduled for. They like and appreciate how organised we are. Also, they learn new things in our (perio) Department. 9To similar effect was the evidence about his work which the plaintiff gave at the hearing. It was surprisingly, and disarmingly, frank. In cross-examination he was asked about the teaching component of his work and said 'I enjoy my work, yes, I do'. He agreed that he wanted more of it. In re-examination his counsel sought to neutralise this evidence about 'enjoying' his work by distinguishing between the plaintiff's work as a dental hygienist and his teaching work. He asked 'Do you enjoy those two activities equally or one more than the other?' To this, the plaintiff responded 'I enjoy both the same. I love my job'. Even Dr Smith, in evidence to which I will later refer, was surprised by this. The plaintiff then added, predictably, and in response to a leading question, that after 'a consistent long period of time, I start to feel distressed and easily irritated'.

Mr Haralambous 10The undiluted enthusiasms of the plaintiff for his employment at the Sydney Dental Hospital, and the tributes of his superiors, caused me to doubt the veracity and reliability of his central contentions. The evidence of Mr Haralambous added to my concerns. Mr Haralambous was impressive, impartial and, I thought, fair. Where appropriate, he readily made concessions. He has had thirty years of experience in the assessment of psychological and neuropsychological disorders and is a member of the College of Clinical Psychologists and the College of Forensic Psychologists of the Australian Psychological Society. 11In 2008 Mr Haralambous carried out a comprehensive psychometric (neuropsychological) assessment of the plaintiff. The assessment included a clinical interview, the review of a number of accompanying reports by medical practitioners and the administration of a number of separate psychological tests. Each test is an objective measure of psychological functioning. In response to the results of those tests, Mr Haralambous recorded the following conclusions: Test of Memory Malingering (a) Mr Zahr's scores, responses, and behaviour during the administration of the TOMM suggest that he carefully took the opportunity provided by this test to exaggerate or embellish cognitive disturbance. Word Memory Test (b) ... the findings on the WMT are more consistent with embellishment of cognitive impairment and with a general over-reporting and exaggeration of symptoms that cannot be accounted for by genuine neurological impairment [including] self reported symptoms of mood disorder, such as depression. Wechsler Adult Intelligence - Digit Span (c) ... such findings are at a level, relative to his estimated premorbid level of functioning, that is more consistent with malingered cognitive impairment. Wechsler Memory Scale - Faces (d) Mr Zahr's score is not consistent with genuine diagnosable pathology affecting concentration or memory. Moreover, his below chance level performance on this test, consistent with the findings on the TOMM, suggests that Mr Zahr actually knew some of the stimulus items were correct but then intentionally chose the incorrect option. Rey Fifteen Item Memory Test (e) The findings on the RFIT, with no rows correctly reproduced in proper location, are not a plausible representation of actual cognitive disturbance and are not consistent with what would be expected of an individual with a genuine impairment of concentration or memory ... Moreover, the findings on the RFIT cannot be accounted for [by] depression. Dot Counting Test (f) The findings on this test are not consistent with what would be expected of either individuals with a genuine head injury, as documented by CT or MRI scans, or emotional disorders such as depression. (emphasis added) 12After dealing with the results of the first six tests, Mr Haralambous set out the following observations: With the above considerations in mind, the findings on other psychometric tests are unlikely to be a valid or reliable representation of Mr Zahr's actual cognitive status, and would not be further interpretable. Further to this, no other neuropsychological tests were administered on this occasion as, with conclusive findings across a range of tests, any additional tests cannot be accepted as valid or reliable representations of Mr Zahr's actual cognitive or neuropsychological status. Rather, in summary, the findings on this occasion are more consistent with a tendency to exaggerate or embellish cognitive pathology, with multiple indicators of inauthentic cognitive disturbance increasing the confidence with which it can be reliably stated that the purported cognitive deficits in this case are substantially feigned. (emphasis added) 13Finally, in response to the results of the Minnesota Multiphasic Personality Inventory-2 Test, Mr Haralambous recorded that the plaintiff: - endorsed, consistent with symptom exaggeration, a large number of obvious symptoms of psychopathology without endorsing the more subtle manifestations of the same conditions; - endorsed an excessive number of items suggesting a tendency to minimise and deny even ordinary pre-existing psychological vulnerabilities and minor negative personality tendencies that others would readily acknowledge, beyond a level that is reasonable or plausible; - endorsed an excessive number of items that reflect a tendency to falsely attribute symptoms through the simultaneous minimisation and denial of pre-existing difficulties and exaggeration of the effects of the circumstances from which a claim arises ... Moreover, a profile of this nature is associated with malingered cognitive deficits; - endorsed an excessive number of bizarre and blatantly psychotic symptoms which, taken on face value, suggest that he is in need of urgent psychiatric hospitalisation for extreme psychopathology, with psychotic features that would be readily apparent to the casual untrained observed. However, the level of disturbance that Mr Zahr endorsed in this regard is not consistent with his presentation at interview, where the more subtle signs of psychosis, such as formal thought disorder, were not apparent, or with the history that he provided. (emphasis added) 14Mr Haralambous then concluded, having regard to the collective effect of the test results, that it could be reliably stated, with a high degree of certainty, that the plaintiff's purported cognitive and psychological deficits are 'substantially exaggerated or embellished'. His view was that the findings across the range of objective tests administered to the plaintiff suggest that he 'carefully took the opportunity provided by the testing situation to exaggerate or embellish cognitive and psychological disturbance and to exaggerate his purported functional limitations'. 15All of this led Mr Haralambous to the following sober opinion, which I accept: ...when objectively evaluated with evidence-based measures the findings do not support the claim of persistent symptoms of a Major Depressive Episode with Anxiety and an Adjustment Disorder, or any other genuine known form of diagnosable psychological pathology. Nor do the findings on objective evaluation support the claim that Mr Zahr is genuinely incapacitated, on a psychological level, in a way that would prevent his return to full-time employment. (emphasis added) 16I should add that Mr Haralambous did not rely exclusively on an objective evaluation. His opinion as to whether a claimant such as the plaintiff is a reliable historian, is also derived in part from his interview with the patient and his consideration of the reports of other practitioners. So it was with the plaintiff. He added that he did not agree that the treating psychiatrist had a more significant place in the assessment of the claimant's history and attributes. And he expressed the view that although treating psychiatrists are skilled clinicians, they do not always take the opportunity of asking informed interrogative questions.

Other Reports 17For completeness, I should mention several other reports on which the defendant also sought to rely. In particular, it wished to emphasise the following conclusions in the reports of Dr Potter and Dr Kossoff: I do not agree with Dr Smith that Mr Zahr is unable to increase his work hours, as Mr Zahr has been able to work three days per week satisfactorily and hiding his condition from employer and children, indicating to me a greater function than he reports. Dr Lana Kossoff, 12 April 2010 Mr Zahr's ability to work is within his own hands. Dr Brian Potter, 19 July 2010 It is most likely that Mr Zahr will work at the level he chooses, demonstrating the picture he wishes the observer to have, no matter what circumstances, including financial. Dr Brian Potter, 29 March 2011 18Dr Potter and Dr Kossoff had been required for cross-examination but due to a misunderstanding, they were unavailable, except possibly by telephone. This was unfair to the plaintiff. However, their reports were referred to by Dr Smith. I therefore received them only on a limited basis, to facilitate an understanding of Dr Smith's evidence.

Dr Smith 19As I have mentioned, Dr Smith has been the plaintiff's treating psychiatrist for eight years. In his report dated 23 May 2007, he diagnosed a major depressive episode with anxiety. At that time, Dr Smith held the view that the plaintiff could gradually increase his work to full-time hours. He criticised Mr Haralambous for focusing on memory testing and alleged that he had failed to consider the whole clinical picture. In particular, Dr Smith was critical of Mr Haralambous for not administering the Beck Depression Test, the Beck Anxiety Test and the DASS psychological tests. 20In October 2011 Dr Smith stated that he had now altered his view that the plaintiff would be able to return to full-time work. In his opinion, the reason for the plaintiff's inability to re-integrate into full-time work was a persistent and extensive morbidity associated with a major depressive disorder and was not necessarily due to his failure to comply with his medication and treatment regime. Dr Smith considered that the plaintiff fell within a category of approximately 20% to 30% of patients who do not respond to treatment. He considered that the plaintiff had not been able to adjust to the 'harsh reality that he can no longer work as a dentist and is confined to working as a dental hygienist, a role that he views as quite demeaning when compared with his formal status as a dental practitioner'. He contended that the plaintiff continued to experience an overwhelming sense of despair and depression linked to his inability to achieve his ambition to obtain his dental qualification in Australia. He thought he was incapable, from a psychiatric point of view, of working five days per week, as he lacked the ability to focus and concentrate. 21In cross-examination, Dr Smith accepted that the Beck and DASS psychological tests are self-administered questionnaires that do not have a mechanism to identify untruthful or unreliable historians. In fact Mr Haralambous said that they have no 'established reliability or validity in medico-legal, compensation or forensic settlings'. Dr Smith agreed however that the Minnesota Multiphasic Personality Inventory - 2 Test is a recognised diagnostic test for psychiatric disorders and stated that it was very useful and contained a live test with 'faking good' and 'faking bad' parameters. 22Dr Smith himself administered no tests. Nor was he aware of the content of the plaintiff's performance appraisal referred to in paragraphs [3] - [8] above or the plaintiff's evidence of enjoyment of his work summarised in paragraph [9]. When questioned whether he disagreed with the results of the testing undertaken by Mr Haralambous, Dr Smith stated that he was not an expert in psychological testing, administration or investigation and would defer to the clinical psychologist. 23When confronted with the evidence that the plaintiff enjoyed his work, Dr Smith was not only surprised, but he appeared reluctant to accept it without qualification. His response was to question the information saying 'Does he really enjoy his work? I would like to explore that with Fred'. I am afraid to say that I formed the view that Dr Smith was one of those expert witnesses who was unwilling to adjust his opinion, even when the ground shifted. He had decided that the plaintiff was a reliable historian in his own cause as early as May 2007, after four consultations of approximately fifteen to twenty minutes each. Over the years, he has, as I earlier explained, become steeped in the plaintiff's cause, seeing him more and more often and questioning neither the truthfulness nor the completeness of his account. The passage of time has only reinforced his opinion and blinded him to the possibility of a contrary view. After years of consultations he has become the plaintiff's loyal advocate rather than his inquisitor. 24I should add that a minor but troubling aspect of the evidence, potentially reflecting adversely on both the plaintiff and Dr Smith, was the information set out in an email sent by the defendant's senior case manager on 24 September 2010. She sent it after receiving a telephone call from the plaintiff. She recorded in her email that the plaintiff said to her '...there will be blood on the floor at Tower if the claim is not reinstated' and that 'his psychiatrist suggested he should give up his part time job so he would be entitled [to] full benefit'. When asked whether he might have given such advice to the plaintiff, Dr Smith was somewhat equivocal, merely saying 'I don't think so [but] I stand to be corrected'. He was not however shown the email. But if he did not give the advice, it must follow that the plaintiff concocted that particular statement in the email. Either way, I was not impressed.

Malingering - The Fragility of Clinical Judgments 25The real point of difference between Dr Smith and Mr Haralambous is that Dr Smith accepted at face value the plaintiff's account of his history and symptoms, while Mr Haralambous, fortified by the results of the extensive neuropsychological testing that he administered, was not prepared to do so. Underlying the issue exposed by this difference is a social and economic problem that has become endemic in contemporary western society. It frequently arises in claims for compensation or other financial benefits by persons who allege that they have suffered psychological illness or injury. 26That problem is malingering. It is not itself a mental illness. Its essential feature is the intentional production of false or exaggerated physical or psychological symptoms, motivated by external incentives such as the obtaining of financial compensation. The problem is said to be prevalent among combat veterans who seek compensation and benefits for disorders such as Post Traumatic Stress Disorder, but it exists in all areas where compensation is sought. One study apparently reported that 53% of treatment-seeking (especially compensation-seeking) veterans, 'exaggerated symptoms or malingered on psychological tests': T Freeman, 'Measuring Symptom Exaggeration in Veterans with Chronic Post Traumatic Stress Disorder', (2008) 158(3) Psychiatry Research 374. 27For some time, there has existed a substantial body of literature relating to the issue of symptom validity and mechanisms for testing claims, especially by those seeking compensation. Some of the literature includes G Young, 'Malingering, Feigning and Responsive Bias in Psychiatric/Psychological Inquiry', (2014) 56 International Library of Ethics, Law and the New Medicine 401. K Brauer Boone, Assessment of Feigned Cognitive Impairment: A Neurological Perspective, (2007 Guilford Press). L Binder, 1992, 'Deception and Malingering', in A E Puente & R J McCaffrey (eds), Handbook of Neuropsychological Assessment, a Biopsychosocial Perspective, (1992 Plenum Press, New York, pp. 353-374). E Eggleston, 'Consideration of Symptom Validity as a Routine Component and Forensic Assessment', (2011) The New Zealand Psychological Society. H Hall, Detecting Malingering and Deception: Forensic Distortion Analysis, (2nd ed 2000, CRC Press). T Merten, 'Symptom Validity Testing in Claimants with Alleged Post Traumatic Stress Disorder: Comparing the Moral Emotional Numbing Test, the Structured Inventory of Malingered Symptomatology, and the Word Memory Test', (2009) 2 Psychological Injury and Law 284. 28Much more of the literature was referred to by Mr Haralambous. He stated, and I accept, that it is now widely recognised that, where a claimant seeks a financial reward on the basis of the diagnosis that his or her account is designed to elicit, the opinion formed by a medical practitioner, even by a highly trained psychiatrist, on the basis of the claimant's self-serving account given in a clinical interview, may be problematic. 29It is a fact of life that, unlike judges operating in a courtroom, who are assisted by an adversarial process and time-honoured techniques for testing the truth of a witness, (or interrogators in other contexts who use more brutal methods), medical practitioners are not as well suited, by nature, training or circumstance, to detect lies, dishonesty, exaggeration or embellishment. The usual, and entirely understandable, starting premise of a medical practitioner is to accept and believe a patient's account. Medical practitioners are not prosecutors and most are probably uncomfortable adopting an inquisitorial role. They are not trained in the art of cross-examination. And they are not exposed on a daily basis to persons who lie and cheat for financial reward. 30The result is that, except in obvious cases, the conventional clinical interview does not provide a ready means or a convenient opportunity for testing a dishonest patient's account of his history and symptoms, unless accompanied by any of the well-known and well-regarded objective psychological testing mechanisms. The armoury of available objective mechanisms includes those tests administered by Mr Haralambous. The plaintiff's counsel submitted that these mechanisms for objective psychological testing are only a 'tool', just as an MRI scan is only a 'tool', and that they are not by themselves a substitute for clinical examination, assessment and judgment. However, I think that they are better described as a screening instrument that is able to play a critical role in identifying false or exaggerated claims. In an appropriate case, such tests are, in my view, valuable, and in some cases indispensable, aids to the formation of an accurate judgment, and consequently a correct diagnosis.

Credit Issues 31It will now be clear that I have reached the conclusion that the plaintiff is malingering. Like Mr Haralambous, but unlike Dr Smith, I do not accept his evidence and do not regard him as a reliable witness. In addition to all the usual means of assessing a witness's credibility, I have had the unique advantage in this case of considering the results of the neuropsychological testing undertaken by Mr Haralambous. I accept the validity of his testing procedures and the conclusions that he reached. The results were consistent, unambiguous and compelling. There was no deviation from the common thread. Mr Haralambous' central conclusion was that his findings do not 'support the claim that Mr Zahr is genuinely incapacitated, on a psychological level, in a way that would prevent his return to full-time employment'. 32I have reached the same conclusion at a subjective level, independent of the objective test results, having observed the plaintiff and listened to his evidence; having compared his evidence with other admissible evidence; having taken into account the probabilities; and having listened to the careful submissions of his counsel. I am quite satisfied on the facts of this case that the plaintiff has engaged in embellishment, exaggeration and deception in order to advance his own financial interests. He has done so with Dr Smith; he attempted to do so with Mr Haralambous; and he did so at the hearing before me. 33The plaintiff was an intelligent, composed and self-assured witness. He did not appear to have any unusual difficulty in understanding questions or providing answers. He gave evidence for almost two hours without interruption. He did not appear to have any difficulty concentrating. He did not display any indication of low self-esteem or loss of confidence when answering questions. He did not break down or appear to be in acute distress, notwithstanding the fact that one might have expected cross-examination to be an unfamiliar and threatening process. When he misunderstood (or claimed to misunderstand) a question, he promptly sought clarification. He not only behaved competently and intelligently in the witness box, but he appeared to follow attentively the whole of the proceedings - the evidence of the expert witnesses, the exchanges with counsel and the final addresses. His evidence, behaviour and apparent acuity were all consistent with the traits revealed by his 2013 performance appraisal. 34I obtained no comfort from the plaintiff's affidavit. In fact, it reminded me of the aphorism that 'the truth sometimes leaks out of an affidavit - like water from the bottom of a well': Thomas v SMP (International) Pty Ltd [2010] NSWSC 822 at [24] - [28]. The evidence as a whole made clear that it could not be relied upon. In fact, in one respect relating to his experience at the University of Western Australia, the affidavit was shown to be quite misleading. That fact alone cast doubt on the rest of the affidavit and the plausibility of the plaintiff's central contention that he was unable to work five days a week. 35The core element of the construct on which the plaintiff built his contention that he suffers from a mental disorder that makes him unfit for full-time work, was that in 2004, when he was a mature age dentistry student at the University of Western Australia, he was the victim of sexual harassment and unfair treatment. Consequently, he was unable, he contended, to complete the course and fulfil his dream of becoming a dentist. 36In reality, this was neither a fair nor accurate account of the true facts. In part it was a phantasm. The plaintiff was not 'expelled' (to use his language) from the University as a consequence of discrimination and sexual predation by a supervisor. In 2004 he failed a subject called 'Operative Dentistry' in which the supervisor in question had no involvement. In February 2005 he was given the opportunity to sit supplementary examinations in both Operative Dentistry, and another subject called 'Removable Prosthodontics' in which the supervisor was involved. He could not continue without passing Operative Dentistry. 37The plaintiff's affidavit made no mention of his failure to pass Operative Dentistry or of the supplementary examinations in February 2005. Its slant was markedly different. Its central proposition was that the cause of his failure in examinations and his departure from the University was his unwillingness to respond to the unwanted sexual advances of his supervisor in Removable Prosthodontics. This was misleading and incomplete. And it was not a case of inadvertent omission. In my view, it was a deliberate and misguided attempt to conceal facts, the truth of which was only exposed when the defendant undertook its own investigation of the University records. I infer that the 'history' which the plaintiff provided to the numerous medical practitioners who subsequently saw him, was similarly incomplete. 38That is enough to make me hesitate but there was another aspect to the plaintiff's evidence that added to my concern about his reliability and leads to my rejection of his central contentions. He said that in order to save money, he engaged in an unorthodox and unusual method of obtaining prescription medication for depression from a shadowy figure called 'Ernesto'. There was no corroboration for this tale but to start with, it is somewhat improbable that the plaintiff should happen to share a table at a coffee shop in a shopping centre and strike up a conversation with an individual calling himself Ernesto who happened, just at the same time, to be looking to sell prescription medication 'off market'. Second, the supposed clandestine meetings between the plaintiff and Ernesto at Central Station to hand over the medication have an Agatha Christie feel about them. Third, the plaintiff's professed lack of concern as to where Ernesto was obtaining the medication from, is surprising. Fourth, the plaintiff's attempt to justify his lack of concern by stating that Ernesto said to him 'I work in the industry where I know the reps. There are always pharmacists to whom they give samples, they get discounts, all these sorts of things', did not ring true. Fifth, on the plaintiff's affidavit evidence, Ernesto was not, in any event, giving him 'samples' but was giving him four to five months' supply at a time. And when confronted with this, the plaintiff's initial response was to say 'I had no idea'. He later claimed to have misunderstood the question. 39Ultimately, I was left with the impression that I could not safely act on the faith of the plaintiff's evidence. I do not believe him. And I am fortified in my conclusion by the evidence of Mr Haralambous. For those reasons, I am not satisfied that the plaintiff is unable to work fulltime. He is not, in my view, suffering from a partial disability within the meaning of the defendant's policy.

Orders 40I therefore make the following orders: (a)I dismiss the amended statement of claim and give judgment for the defendant; (b)I order the plaintiff to pay the defendant's costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2014

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