# Malingering



## TCBF (10 May 2008)

National Defence Act
            PART III: CODE OF SERVICE DISCIPLINE
               DIVISION 2: SERVICE OFFENCES AND PUNISHMENTS
                  Disgraceful Conduct
Malingering, aggravating disease or infirmity or injuring self or another
 98. Every person who

(a) malingers or feigns or produces disease or infirmity,

(b) aggravates, or delays the cure of, disease or infirmity by misconduct or wilful disobedience of orders, or

(c) wilfully maims or injures himself or any other person who is a member of any of Her Majesty’s Forces or of any forces cooperating therewith, whether at the instance of that person or not, with intent thereby to render himself or that other person unfit for service, or causes himself to be maimed or injured by any person with intent thereby to render himself unfit for service,

is guilty of an offence and on conviction, if he commits the offence on active service or when under orders for active service or in respect of a person on active service or under orders for active service, is liable to imprisonment for life or to less punishment and, in any other case, is liable to imprisonment for a term not exceeding five years or to less punishment.

R.S., c. N-4, s. 88.

- With all of the gossip about people faking "Non-visible above the neck" injuies (PTSD, OSI, etc.), does anyone actually know about anything being done about it?  As well, not mentioning previous physical or mental illnesses on enrolment being covered by this article:

  National Defence Act
            PART III: CODE OF SERVICE DISCIPLINE
               DIVISION 2: SERVICE OFFENCES AND PUNISHMENTS
                  Offences in relation to Enrolment
False answers or false information
 122. Every person who knowingly

(a) makes a false answer to any question set out in any document required to be completed, or

(b) furnishes any false information or false document,

in relation to the enrolment of that person is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.

R.S., c. N-4, s. 112.

One should think either the above or, if a VAC pension is at issue,  a civil charge of fraud may apply.

Any recent cases?


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## PuckChaser (10 May 2008)

OSI and PTSD would be really hard to paint under malingering, and would probably cause those with legit mental health problems to A: be harassed and prolong them getting the care they need, or B: they'd just not go get help at all, for fear of A.

You'd need a credible witness hearing a person state that they are faking the injury to charge them, and I'd hope that anyone that would hear something like that would report the pers immediately.


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## medicineman (10 May 2008)

Last time I saw somone being brought  up on charges of malingering was when I was at RMC - unfortunately, the MO refused to support the charge.  IMHO, they deserved it, but who am I?  Besides, if you read 98(b), under that alone, most of us on here would be guilty - acting in a manner that crossed the fine line between hard and stupid despite being told otherwise.

Any alleged "unseen" (non)injury, be it beween the ears or in the back, is actually difficult to prove as malingering - there are ways, I know a few  :, but these days, people seem to get the benefit of the doubt.  It is easier than having people freak out and go to the press and such.  Though it is quite fun to hear the ones that are, shall we say, playing the system, get caught and try to whine their way out of it.  Saw that with an insurance scammer. 

Seen the odd "irregular" enrolment as well - these people are more often released administratively instead of going through the military legal system.  It seems to be easier to prove administratively (50%+1 probability) vs the beyond a reasonable doubt bit required of the law.

That's my take on things - others may have some things to add pro or con.

MM


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## Armymedic (10 May 2008)

medicineman said:
			
		

> Any alleged "unseen" (non)injury, be it beween the ears or in the back, is actually difficult to prove as malingering



I'd say almost impossible to prove, esp between the ears. The back....there are ways.


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## medicineman (10 May 2008)

St. Micheals Medical Team said:
			
		

> I'd say almost impossible to prove, esp between the ears. The back....there are ways.



As I mentioned...the shrink we had on course also mentioned a couple of ways as well  ;D.

MM


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## exgunnertdo (10 May 2008)

I had several conversations with medical staff one summer regarding a candidate on a QL2 for which I was the Crse O.  She could never remember which leg to limp with.  The staff basically said, "we can say that we can't find a medical reason for the pain, but we can't say she's not in pain."  Therefore, we couldn't charge her with malingering.  They even agreed that she probably didn't need to be on light duties, but ...

(she did eventually get RTU'd - usually works out in the end!)


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## Blackadder1916 (11 May 2008)

> Besides, if you read 98(b), under that alone, most of us on here would be guilty - acting in a manner that crossed the fine line between hard and stupid despite being told otherwise.



Unlikely when you read the notes to QR&O 103.1 which deals with this offence.  Intent (to aggravate the injury or disease) is the key.

NOTES to QR&O 103.31 – MALINGERING OR MAIMING


> (A) A charge of malingering should be laid only where the accused has pretended illness or infirmity in order to escape duty.
> 
> (B) A charge of feigning disease or infirmity should be laid only where the accused exhibits appearances resembling genuine symptoms which, to his knowledge, are not due to such disease or infirmity, but have been induced artificially for purposes of deceit, for example, simulating fits or mental disease .
> 
> ...



Though it has been long superceded, in the Manual of Military Law 1929 (MML) (extracts reprinted for use in the Canadian Army 1941) the notes to the section of The Army Act dealing with similar offences are more extensive.  One para that was applicable.

"5.   The misconduct must be with the intent of producing or aggravating the disease, or delaying its cure, as the case may be.  To produce disease is wilfuly to cause genuine disease to develop; e.g., by the infection of microbes or poinsonous drugs.  The involuntary production, aggravation, or prolongation of delerium tremens by intemperate habits, or of venereal disease by immoral conduct, does not render a person liable under this paragraph.  Nor would a person under it incur liablity who refuses to undergo a surgical operation. 
A soldier  cannot be punished for disobedience of an order to be vaccinated, or for refusing to be inoculated or to allow an anaesthetic to be administered."

The mindset of the Army back then may be viewed by this specimen charge from the Rules of Procedure in the MML.

No. 51​Sec. 18(3), Army Act.

Charge Sheet​The accused, No.         , Private                 ,          Battalion,               Regiment, a soldier of the Regular Forces, is charged with -
      _Being wilfully guilty of misconduct by means of which misconduct he delayed the cure of disease_,
in that he, at                  , on                          , [between              and             ], when under medical treatment for syphilitic sores, tampered with the said sores by the secret application of                        , thereby delaying the cure of his disease.


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## daftandbarmy (11 May 2008)

Most good SNCOs (and Adjts) know how to deal with this offence without having to resort to formal disciplinary measures...


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## TCBF (11 May 2008)

daftandbarmy said:
			
		

> Most good SNCOs (and Adjts) know how to deal with this offence without having to resort to formal disciplinary measures...



- Times have changed.


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## Michael OLeary (11 May 2008)

TCBF said:
			
		

> - Times have changed.



Meaning?


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## Gunner98 (11 May 2008)

Times have changed.

Firstly, since the Adjt and SNCOs have no right to know the nature of the illness only the Medical Employment Limitations, things get hard to pinpoint.  Unless the soldier foolishly offers info by choice.

Secondly, the accused must be offered the right to elect Court Martial (QR&O 108.17) for a charge of Malingering, this makes it potentially even more time consuming and difficult to prove if CM was chosen.  I doubt it would ever see CM.


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## RickDevlieger (11 May 2008)

In my experience, the CF has a greater problem with those who are hiding injuries/illness than with the "Sickbay Ranger". They may be hiding so that they get that next promotion, or hold out until they are pensionable or in some cases, simply don't want to be associated with or known as a "Sickbay Ranger". Some of these people hold out so long, a treatable condition gets so bad that it no longer can be fixed.

As for the "Sickbay Rangers", they are the price we pay for looking after our deserving people properly.


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## armyvern (11 May 2008)

Here, we avoid the BHosp like the plaque.

No one wants to be stuck there until 1400hrs minimum because the place is so inundated with candidates (especially on Monday "_I need a week of LD_" day), and because there's only one or two MOs there while the rest work downtown.

4 month waiting lists to see an MO because of a problem with one's feet or back ... aren't acceptable, and there was the day when it wasn't acceptable.


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## Redeye (11 May 2008)

Chief Tech said:
			
		

> In my experience, the CF has a greater problem with those who are hiding injuries/illness than with the "Sickbay Ranger". They may be hiding so that they get that next promotion, or hold out until they are pensionable or in some cases, simply don't want to be associated with or known as a "Sickbay Ranger". Some of these people hold out so long, a treatable condition gets so bad that it no longer can be fixed.
> 
> As for the "Sickbay Rangers", they are the price we pay for looking after our deserving people properly.



I know this feeling (though not quite to that extreme).  On course years ago I did my damnest to conceal a showstopper injury, in foolish hopes of avoiding being called a malingerer or an MIR Commando, until my course was done.  In hindsight there was no way I was going to make it but the harder I tried the worse I looked overall as a candidate, until I eventually wound up a training failure.  It didn't work out at all, in any sense of the word, but in trying to fight through and conceal I made the injuries far worse and didn't get proper treatment until it was far too late, and now have a chronic problem.


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## TCBF (11 May 2008)

Chief Tech said:
			
		

> ... As for the "Sickbay Rangers", they are the price we pay for looking after our deserving people properly.



- Some problems exist that we know would entail 'rocking the boat' to solve.  Those who are paid big money to know the difference between real injuries or fake ones are also paid big money to report malingerers and testify if need be.  Not to do so is theft of wages and an abrogation of professional responsibility.

- We have soldiers spending four years in the various PAT/PAR platoons, playing the system.  We need a holistic, unified protocol for assessing their worth to the CF and acting according to "the exigincies of the service."


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## Greymatters (13 May 2008)

Whats the factual standard for deciding what 'malingering' is and where the line is?  Have they come up with a specific number of daysper year going to the medic yet?


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## medicineman (13 May 2008)

All I can say to that is wishful thinking.  

MM


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## 043 (13 May 2008)

ArmyVern said:
			
		

> Here, we avoid the BHosp like the plaque.
> 
> No one wants to be stuck there until 1400hrs minimum because the place is so inundated with candidates (especially on Monday "_I need a week of LD_" day), and because there's only one or two MOs there while the rest work downtown.
> 
> 4 month waiting lists to see an MO because of a problem with one's feet or back ... aren't acceptable, and there was the day when it wasn't acceptable.



CHEERS!!!!!!! 42 Health Services=Brutal!!!!!!!!!


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## Greymatters (13 May 2008)

medicineman said:
			
		

> All I can say to that is wishful thinking.



My point is there should be a line before which accusations of slacking are unfounded, and then a farther line where the person should be investigated.  Take teh following as an example (although I doubt it would work in some CF workplaces):

Soldier goes to MIR 0 times in a year = superhuman, or afraid of doctors
Soldier goes to MIR 5 times in a year = normal
Soldier goes to MIR 10 times per year = still normal
Soldier goes to MIR 15 times per year = this is pushing, but still within normal limits
Soldier goes to MIR 20 times per year = this is your top end of the normal spectrum and is equivalent to the standard of two 'sick days' per month observed in the public and private sectors.  Up to 20 times per year can cover a variety of one-time minor ailments.  

Soldier goes to MIR 20-30 times in a year = the line has been crossed; supervisors are entitled to inquire as to why the member is going so many times, although not allowed to ask what for unless the member voluntary offers that information, and is bound to keep that information confidential if the member does explain what is going on.  Basically, the member should have a good reason for going so often. 

Soldier goes to MIT 30-50 times in a year = the member should have a valid reason for this many trips, i.e. broken leg, back problems, etc.  Accusations of malingering or avoidance of work would still be difficult to prove in this area.  

Soldier goes to MIT 50+ times per year = if the person doesnt work there, then there's no reason for a soldier to go this many time to the MIR without something definately being wrong with them.  It is reasonable for supervisors to ask what is going on and get answers.  If nothing is wrong with them, then there is definately grounds for investigating for charges of malingering.


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## riggermade (13 May 2008)

Chief Tech said:
			
		

> In my experience, the CF has a greater problem with those who are hiding injuries/illness than with the "Sickbay Ranger". They may be hiding so that they get that next promotion, or hold out until they are pensionable or in some cases, simply don't want to be associated with or known as a "Sickbay Ranger". Some of these people hold out so long, a treatable condition gets so bad that it no longer can be fixed.
> 
> As for the "Sickbay Rangers", they are the price we pay for looking after our deserving people properly.



And it doesn't end there, when you start dealing with VA over injuries that were obtained while in and there is no record on your med file you are in an uphill battle.  I don't agree with the mentality of some of these young kids but in the long run they will be looked after for stuff that seems small now but may worsen with time.


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## medicineman (13 May 2008)

2023 said:
			
		

> CHEERS!!!!!!! 42 Health Services=Brutal!!!!!!!!!



Can't blame me - I'm no longer there  ;D.  Though I can take some flack the 2 weeks I'm there in July...

MM


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## armyvern (13 May 2008)

medicineman said:
			
		

> Can't blame me - I'm no longer there  ;D.  Though I can take some flack the 2 weeks I'm there in July...
> 
> MM



That's giving me a flashback to the last time I saw you ... we'll have to do beers.  >


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## combatbuddha (14 May 2008)

I suppose a charge of malingering would come into effect, and could even raised by a MO, if a soldier being treated for an ailment, such as a bad back or other, is witnessed doing something outside of the soldiers MEL. An example of this could be instances when soldiers participate in after hours civilian hockey leagues when when their chits distinctly say no contact sports or high impact activities. All it takes is a camera phone. Sometimes the troops forget the ol' 24/7 rule. In addition a charge of malingering could also be placed as an alternate charge if a soldier with a known skin, respiratory or other condition and that person knowlingly does not where his prescribed PPE, even after being ordered to by the persons immediate supervisor.
       As for OSI's, I'd let the people with the diplomas on the wall sort that one out. In this case I figure that if the member does not disclose the appropriate information to the people facilitating the treatment the member could be investigated for malingering by the CF medical pers and dealt with accordingly. Innocent until proven guilty, right?
        I have not heart ache for those pers who need to see medical staff to sort out an ailment as the most valuable asset the CF has is it's people. I do have a heart ache with those who don't follow through with treatments and let things deteriorate for fear of having their ego hurt. Set that crap aside and sort yourself out.


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## medicineman (14 May 2008)

ArmyVern said:
			
		

> That's giving me a flashback to the last time I saw you ... we'll have to do beers.  >



Have to see what we can do - and get anyother of the crazy GTown folks out.

MM


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## PMedMoe (14 May 2008)

combatbuddha said:
			
		

> I suppose a charge of malingering would come into effect, and could even raised by a MO, if a soldier being treated for an ailment, such as a bad back or other, is witnessed doing something outside of the soldiers MEL. An example of this could be instances when soldiers participate in after hours civilian hockey leagues when when their chits distinctly say no contact sports or high impact activities.



That is often difficult when the doctors themselves write a contradictory chit.  For example, when I was doing med coverage for the reserve JLC courses in Pet, one of the GDs got a chit that said no running but he could still play soccer and baseball.  ???


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## RickDevlieger (14 May 2008)

PMedMoe said:
			
		

> That is often difficult when the doctors themselves write a contradictory chit.  For example, when I was doing med coverage for the reserve JLC courses in Pet, one of the GDs got a chit that said no running but he could still play soccer and baseball.  ???



Or the standard: "No drill, No EXPRES test, PT at own pace".  I make them get changed and go to the gym anyway, even if all they do is pretend to work out on a stationary bike. The way I see it, those worth keeping wwill make an effort to get better, the others I will ensure that they receive every benifit they are entitled to as I help them transition to civilian life.


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## the 48th regulator (14 May 2008)

PMedMoe said:
			
		

> That is often difficult when the doctors themselves write a contradictory chit.  For example, when I was doing med coverage for the reserve JLC courses in Pet, one of the GDs got a chit that said no running but he could still play soccer and baseball.  ???



The actual chit said he could still play soccer and baseball?

Infreakingcredible....you wonder where some of these Doctors get their training....

dileas

tess


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## PMedMoe (14 May 2008)

the 48th regulator said:
			
		

> The actual chit said he could still play soccer and baseball?
> 
> Infreakingcredible....you wonder where some of these Doctors get their training....



IIRC, the chit said no running but may play sports.  Also, I believe it was a civilian doctor.  We had too many of them not familiar with the day-to-day requirements for courses, etc.  At least this guy was only a GD.  There were actually people on course getting 21 days LD and we had to call the BHosp and tell them that means they would be RTU'd.  Of course, the chit would quickly get changed.  :


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## Bruce Monkhouse (14 May 2008)

PMedMoe said:
			
		

> That is often difficult when the doctors themselves write a contradictory chit.  For example, when I was doing med coverage for the reserve JLC courses in Pet, one of the GDs got a chit that said no running but he could still play soccer and baseball.  ???



[ I am going on the assumption that medical practice is universal in Canada]
IMO, that Doctor is stepping outside his Health and Safety protocols, from the few papers I have studied on back to work legislation the medical side can only list your limitations, not what you can do.

If a medical limitation states that the pers cannot run than he/she cannot run, if he/she cannot pick up more than 40 pounds than he/she cannot work in a job that they must pick up more than 40 pounds, if it says no nights than they can't do the job that requires night.
 The area of work [ ie soccer] would not be a medical decision...................we have sick notes that say that so and so can't work, IE Unit 5, and that is not acceptable as a legal accommodation. Now, if the note says no stairs, and Unit 5 has stairs, than it is understood that this per cannot work Unit 5 or anywhere he/she must do stairs.

Since I have another two day course in June maybe I will learn some more....


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## PMedMoe (14 May 2008)

Bruce, I know exactly what you mean.  But of course, being in the military involves PT.  Obviously, this guy didn't want to run, but was okay to play sports *for PT* or after hours.


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## armyvern (14 May 2008)

LOL Moe,

One of mine once came back with a chit for a sore shoulder ...

"LD X 21 days. No upper body PT. Volleyball is acceptable."

Guess who played volleyball on the CISM team?  :


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## PMedMoe (14 May 2008)

ArmyVern said:
			
		

> LOL Moe,
> 
> One of mine once came back with a chit for a sore shoulder ...
> 
> ...



Wow, big shock, eh?  NOT!!  ;D


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## medicineman (14 May 2008)

I got someone really upset when I wrote them a chit that excused them pretty much everything except heavy breathing and then asked that I say unit hockey was acceptable though - he looked at me like a 4 headed alien when I gave him the option of zero restrictions or everything.  Since he was injured, he got everything from me anyway.  There is a bit of a problem with some of those folks that think they're on a sports scholarship here - might have worked in the 80's in Germany, not these days.  And don't get me started on those that think that a little pain equals a day off work - there is always something that can be done to accomodate what's wrong with you if you're not totally functionally impaired beyond activities of daily living, and even then...

I think I might have problems after graduation  .

MM


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## Bruce Monkhouse (14 May 2008)

ArmyVern said:
			
		

> LOL Moe,
> 
> One of mine once came back with a chit for a sore shoulder ...
> 
> ...



Not accecptable................and if I was the employer/supervisor I would have challenged it.

No pushups, OK, volleyball is on.......but no upper body would mean just that. Play volleyball and I charge you........and we'll see where it falls.


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## Strike (14 May 2008)

I tend to end up at the MIR quite a bit -- the perils of being involved in a combat sport.  Of course, my reason is to document everything, not to get off.  No way can I take time off training.

I once had a bad case of plantar faciitis (sp) while training for a marathon.  The doc was very sympathetic and sent me to a specialist so I could keep training, on a more limited basis of course.


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## TCBF (15 May 2008)

- We had guys moonlighting as boucers in a bar in Lahr.  One of them got thumped.  Doc said "Go see your employer - his Health Insurance will cover you at the Krankenhaus."  Bouncer went to the German bar to check.  The German bar immediately fired all of it's Canadian military bouncers.



- Funny how that works, eh?


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## Kat Stevens (15 May 2008)

In my younger days, and into my older ones, I was a better than okay soccer player.  In the days of 4 road runs and one parade every week, my knee started giving me hell.  I went to UMS, got a 30 days no running chit.  4 CMBG soccer playoffs were right in the middle of my 30 days.  CO made a phone call to UMS and had my chit amended to "no running on roads, grass at own pace".  My WO was livid, I was embarrassed,  but the CO got his way, and I played.


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## TCBF (16 May 2008)

Kat Stevens said:
			
		

> ... grass at own pace".  .



- A chit like that could get a young soldier in a lot of trouble nowadays.


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## PMedMoe (16 May 2008)

TCBF said:
			
		

> - A chit like that could get a young soldier in a lot of trouble nowadays.



Not to mention the doctor who wrote it....


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