The Plaintiff’s Guide to Overcoming Accusations of Malingering in Workers Compensation and Auto Accident Claims

 

You Must Attack Allegations that You are Faking a Disability or Exaggerating Symptoms Head-On to Win Your Case

 

Liar.

 

Cheater.

 

Faker.

 

Fraud.

 

The insurance defense attorneys may insinuate you are each of these things when you seek workers compensation benefits or file a civil action for personal injuries after a car crash.

 

But the defense lawyers probably won’t use these words directly.

 

Instead, they will attack your credibility and integrity by alleging you are malingering – a word that implies you are cheating the judicial system to get money by exaggerating the severity of your symptoms and the extent of your disability.

 

And they will manufacture harmful evidence, such as defense medical examination reports (also called IMEs), and hide behind minor inconsistencies in the medical records or deposition testimony to challenge your motivation and turn your treating physicians against you.

 

Suggesting that an accident victim who has lost mobility and independence and struggles with pain and depression is a liar is mean-spirited. But insurance companies know the malingering defense often works in personal injury cases, resulting in defense verdicts, lower jury awards, and even victims abandoning claims.

 

You can overcome these allegations of malingering, though. And you can do it by understanding the malingering defense, confronting the insurance company on its use, and using the evidentiary rules and your supporting evidence to belittle the insurer’s tactic.

 

This article is the starting point for defeating the malingering defense in workers compensation and personal injury cases.

 

Keep reading to learn more.

 

Then call my law firm at (804) 251-1620 or (757) 810-5614 or complete the online contact form for a free consultation.

 

See why fellow attorneys and past clients have voted us one of Virginia’s best law firms for claims involving workplace accidents, traumatic brain injury (TBI), PTSD, and construction accidents. And how we can help you and your family.

 

 

What is Malingering?

 

The legal and medical professions define the term “malingering” similarly.

 

In the legal setting, a person who “malingers” pretends to be ill or disabled to avoid an obligation (such as returning to work or military duty) or continue to receive compensation or disability benefits. (See Black’s Law Dictionary, 11th ed., p. 1148).

 

Likewise, in medicine, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) defines malingering as intentionally producing false or grossly exaggerated physical or psychological symptoms to achieve external gains. These gains include avoiding work, obtaining monetary compensation such as damages for personal injury or paid leave, avoiding military service, or evading prosecution. 

 

Historical Overview of Malingering

 

Malingering is an ancient concept documented in biblical times. 

 

Initially, the focus was on the armed forces in the modern era. For example, one article says that during the American Civil War, the “first diagnostic decision facing the examining physician concerned the presence of feigned symptoms.” 

 

Later, the focus on malingering and faking disability shifted to personal injury and workers compensation cases, with terms such as “railway spine” and “compensation neurosis” used frequently.

 

Is Malingering an Official Psychiatric Disorder?

 

No.

 

The medical profession does not consider malingering a mental illness.

 

The DSM-5, however, gives a “V” code to malingering. This code means malingering is an additional act or condition requiring clinical attention.

 

What are the Types of Malingering?

 

Phillip Resnick, MD, a forensic psychiatrist, broke malingering into three categories:

 

• Pure malingering: This category describes a person faking a non-existent injury or disorder.

 

• Partial malingering: This category is when an individual has real symptoms but exaggerates their severity.

 

• False imputation: This type of malingering refers to the behavior when a person attributes actual symptoms to an alternative cause.

 

Usually, insurance companies imply that injured plaintiffs are guilty of partial malingering or false imputation (for example, relating pre-existing pain from degenerative disc disease to a recent accident).

 

Criteria for a Malingering Diagnosis

 

The DSM-V states that malingering should be “strongly suspected” if a person has any combination of the following four complaints:

 

• A lawyer sends their client for an examination, or the person presents with an illness with a pending trial.

 

• There is a significant difference between the person’s claimed disability or stress and the objective findings. For example, a person complains of significant low back pain radiating into their legs, but the lumbar MRI is normal.

 

• The person fails to comply with recommended medical treatment.

 

• Signs of antisocial personality disorder are present.

 

As you can see, simply pursuing your legal rights puts you in the crosshair of a malingering defense.

 

In addition, claim adjusters and insurance defense attorneys may push a malingering defense and allege that you are faking a disability if any of the following items are present:

 

• Complaints about unsafe work conditions before the injury

 

• Vague symptoms that change from appointment to appointment

 

• Overusing medical treatment

 

• Refusal to attend a defense medical examination

 

• Past workers comp claims or auto accident settlements (available through an ISO search)

 

• Disciplinary problems at work, especially in the days or weeks before the injury

 

How is Malingering Diagnosed?

 

There is no conclusive test to detect malingering.

 

And the difficulty in diagnosing it often leads to false positives, thereby misclassifying many accident victims as malingerers when they are not. 

 

Because objective testing cannot confirm that a person is faking a disability, healthcare professionals may use a combination of patient history, physical exam, and psychological tests to diagnose it.

 

This patient history may include asking about the following:

 

• Your citizenship status

 

• Past personal injury lawsuits or workers comp claims

 

• Finances, including past bankruptcies or current debts

 

• Family and social history

 

• Past hospitalizations

 

• Medication

 

• Alcohol or substance abuse

 

During this history-taking, the medical provider may look for inconsistencies in your behavior and claims. 

 

For example, a psychiatrist may observe your appearance and moods and analyze the level of exaggeration in your responses. Or an orthopedic surgeon may look for Waddell signs in a spinal fusion case or decreased grip strength in a hand injury claim.   

 

Inconsistent scores on physical exams may lead the doctor to consider a malingering diagnosis.

 

In addition, some mental health professionals use psychological tests to help detect malingering. Examples of these tests include:

 

• Minnesota Multiphasic Personality Inventory (MMPI-2)

 

• Test of Memory Malingering

 

• Rey 15-Item Test

 

• Negative Impression Management Scale

 

But as this article later discusses in more depth, these tests have weaknesses you can attack if the insurer accuses you of faking a disability.

 

Malingering Issues in Specific Types of Lawsuits and Insurance Claims

 

Accusations that a person seeking benefits or damages is faking a disability run rampant in various insurance and tort claims. 

 

But the specific issues that malingering allegations raise differ depending on the type of case. 

 

Let’s look at how different tribunals address malingering claims. 

 

Testing for Malingering in Social Security Disability Claims

 

The Social Security Administration (SSA) publishes a Program Operations Manual System (POMS) that instructs Social Security employees on how to process claims for Social Security disability insurance (SSDI) benefits. 

 

POMS DI 22510.006 tells Social Security employees not to purchase symptom validity tests (SVT) if malingering is suspected.  

 

The reason for this is simple: “Tests cannot prove whether a claimant is malingering because there is no test that, when passed or failed, conclusively determines the claimant’s motivation. Malingering requires a deliberate attempt to deceive.”

 

Examples of symptom validity tests that the SSA will not pay for include the following: 

 

• Miller Forensic Assessment of Symptoms Test (M-FAST)

 

• Millon Clinical Multiaxial Inventory

 

• Malingering Probability Scale

 

• Structured Interview of Reported Symptoms

 

• Validity Indicator Profile

 

Instead of ordering these tests, POMS suggests referring a case suggestive of fraud or faking disability to the Office of Inspector General for investigation. 

 

Malingering and Workers Compensation Claims

 

In workers compensation cases, employers, insurers (Travelers, Hartford, etc.), and claim administrators (Sedgwick, Gallagher Basset, ESIS, etc.) may rely on the following to imply an employee is faking a disability (or even the accident itself):

 

• The employee’s criminal history (if convicted of a felony or a crime involving lying, cheating, or stealing), 

 

• History of past claims, or

 

• The defense medical examination (DME) report 

 

Regardless of the source, malingering accusations can cause several problems. 

 

First, your healing process will take longer if the insurer denies medical treatment because it thinks you are faking your injury and symptoms.

 

Then the insurance company may argue that the lengthy healing period is another sign of faking a disability – even though it created the problem. 

 

For example, suppose you suffer a shoulder injury, and your doctor disables you from all work pending the results of an MRI. Specifically, the doctor does not want you to perform even light-duty work until he sees if you tore your rotator cuff. 

 

But the insurer will only pay for the MRI if the Workers Compensation Commission orders it to do so after the trial. And you do not have private health insurance coverage to proceed with the testing. 

 

In this situation, your claim will seek more temporary total disability (TTD) benefits because you will be out of work longer pending the MRI. 

 

In addition, you may get a higher permanent impairment rating (resulting in more money for permanent partial disability) or be at a greater risk of reinjury because of the treatment delay. 

 

Second, the employer and insurer may use allegations that you are faking a disability (or its severity) to stop your wage loss payments. 

 

For example, most DMEs I review concede that the accident happened because the Commission has entered a Workers Compensation Award Letter. Indeed, the doctor will lose all credibility if they dispute the incident. 

 

However, many DME physicians will try to pin the ongoing symptoms on past accidents. Or they will say that the reported complaints are out of proportion to the objective evidence. 

 

Then the insurance company applies to stop your workers comp benefits. 

 

These malingering arguments are common in cases involving head trauma resulting in a concussion and post-concussive syndrome, where diagnostic imaging is not sensitive enough to detect the cellular changes in the brain. 

 

Our firm has had a lot of success defeating insurers’ attempts to stop benefits based on malingering accusations. 

 

The problem, however, is that it takes time to resolve these disputes, mainly if you must present evidence at a workers comp hearing. 

 

Insurers know that a delay in payments can weaken your resolve to fight. 

 

And they will use your frustration to ask you to sign a Compromise and Release, closing your claim. 

 

Don’t give in.

 

Instead, plan how to attack these claims that you are faking, research the average workers comp settlement range for your specific injury, and write a settlement demand letter that persuades the insurer to pay more.

 

Allegations of Malingering in Personal Injury Lawsuits

 

Generally, you file a personal injury lawsuit when someone’s negligence or intentional act harmed you. Or, in some cases, when another person or company is strictly liable for any damage.

 

If you prove liability on one of these theories, you can recover money damages for the losses you suffered. Examples of recoverable damages include past and future medical treatment, lost income, diminished earning capacity, disfigurement, and physical pain and suffering.

 

These damages’ purpose is to make you whole and restore you to your position before the injury.

 

Sometimes the insurer cannot dispute liability for the injury because it is so apparent.

 

Recognizing this, the insurance company may pay for expert witness testimony that you are malingering to reduce how much the judge or jury awards you.

 

Do Courts Allow Expert Testimony on Malingering?

 

Sometimes. 

 

Let’s examine the rules and case law determining if a doctor can testify that you have exaggerated your injury or disability.

 

Rule 702 of the Federal Rules of Evidence

 

Rule 702 says that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may give an opinion at trial if:

 

• The expert’s scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact issue,

 

• The test is based on sufficient facts or data,

 

• The testimony comes from reliable principles and methods, and

 

• The expert has reliably applied the principles and methods to the facts of the case.

 

The Trial Judge’s Role as Gatekeeper

 

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the U.S. Supreme Court charged trial judges with acting as gatekeepers to exclude unreliable expert witness testimony.

 

As the party offering expert testimony that an injured worker or accident victim is malingering, the insurer bears the burden of proving the expert testimony meets the admissibility requirements.

 

Daubert gives a checklist for trial courts to use in assessing the reliability of expert testimony.

 

These factors include:

 

• Whether the expert’s technique can be tested or challenged objectively,

 

• Whether the technique has been subject to peer review and publication,

 

• The known or potential rate of error of the test or technique when applied,

 

• The existence of standards and controls for the testing, and

 

• Whether the scientific community has generally accepted the technique, theory, or test.

 

Many states have enacted similar standards by statute or case law.

 

Attacking the Insurer’s Claims that You are a Malingerer

 

You will probably be upset the first time you hear the insurer accuses you of exaggerating your symptoms. 

 

I get it. 

 

Take a deep breath. And then focus on overcoming the malingering accusations. 

 

Here are some ways to beat the insurer at its own game. 

 

Attack the Expert Witness’s Qualifications

 

Virginia courts have held that an opinion about the causation of a particular physical human injury is a part of a diagnosis, which is part of the practice of medicine.

 

Only a medical doctor can state an expert opinion about an injury’s cause. And saying that you are malingering is an opinion that you did not suffer damage severe enough to cause the complaints you report.

 

Therefore, you should move to exclude an opinion that you are faking a bodily injury or resulting symptoms if that opinion comes from a psychologist or some other person without a medical degree.

 

Challenge the Foundation for the Expert’s Testimony

 

The defendant’s expert witness will likely point to your test results to support an opinion that you are malingering.

 

But, as previously discussed, there is no conclusive test to determine malingering.

 

Therefore, I recommend taking the expert witness’s deposition to show how little they know about the tests they rely on and how the medical literature rejects their use for concluding that a person is faking a disability.

 

In addition, you can challenge the procedure used by the expert witness in diagnosing you as a malinger. Or point out how your other medical conditions may have influenced your presentation during the exam.

 

Draw Out the Expert’s Bias

 

The defense hired the expert witness to provide testimony unfavorable to you. 

 

That is the only reason the witness is involved in your case. Indeed, they have not provided any medical treatment. 

 

These facts, combined with data on how much the expert witness makes giving testimony to defendants, can help you weaken the witness’s credibility and boost how much weight the judge or jury gives to your supportive physicians. 

 

Use Lay Witnesses

 

Testimony from people who interacted with you before and after the injury – friends, family, neighbors, coworkers, clergy, and coaches – can give insight into your behavior.

 

Argue that Only the Factfinder Can Judge Your Credibility

 

The judge or jury will serve as the factfinder in your case.

 

And only the factfinder has the power to decide if a party or witness is telling the truth.

 

An opinion that you are a malingerer (i.e., not telling the truth about your symptoms) invades the factfinder’s role.

 

Therefore, you should move to exclude an unfavorable expert witness opinion that you are lying or exaggerating as out of bounds.

 

What to Do to Avoid Malingering Accusations

 

You cannot control the insurance company’s strategies and tactics.

 

But there are some things you can do to avoid the likelihood the insurer accuses you of faking an injury or disability or minimize the effect of malingering claims. 

 

These acts include the following:

 

Document Your Injuries, Symptoms, and Complaints

 

Consider keeping a symptom journal and asking your friends or family members to do the same. 

 

Your journal and testimony from loved ones can prevent an allegation that you only complain of pain and limitations when seeing the doctor for your injury. 

 

Tell the Truth

 

Always tell the truth about your pain levels. 

 

Consistently reporting high levels of pain will lead to suspicions of malingering – especially if there is evidence that you can perform activities of daily living or have returned to full-duty work. 

 

In my experience, for example, you lose credibility if you rate your pain at ten on a scale of one to ten, but the judge or jury has seen you sit through trial without taking breaks or seeming fine. 

 

Do not be afraid to tell the truth and rate your pain at the correct level, even if it seems middle of the road – for example, a four or five on a scale of one to ten. 

 

The factfinder is more likely to believe it. And won’t penalize you for the lower level if you are telling the truth. 

 

Follow the Treatment Plan

 

The defense will point to gaps in treatment to argue that you are faking a disability or its severity. 

 

Therefore, you must comply with prescribed medical treatment to recover fair compensation for your injuries or occupational diseases. 

 

Don’t Doctor Shop

 

You may want to seek a second opinion if you continue to have pain or limitations, but your treating physician declares you have reached maximum medical improvement (MMI).

 

This is natural. And most judges and juries understand.

 

But if you seek four or five medical opinions despite receiving the same response, the insurance company (and factfinder) may question your motivation for seeking treatment. This is especially true if the medical reports say you are asking for work restrictions.

 

Try to Keep Working if Possible

 

Stopping work may raise the insurance company’s suspicions unless you suffered a catastrophic injury such as a cervical spine injury, ankle fracture, or amputation.

 

If returning to work is impossible or against your physician’s advice, or if the employer cannot accommodate your restrictions, I recommend looking for work and keeping written proof of your job search.

 

Do Not Exceed Your Restrictions Outside of Work

 

You will likely face malingering accusations if the insurer hires a private investigator to watch you and the surveillance footage shows you exceeding your medical work restrictions at home.

 

For example, a medical report showing you told the doctor you have pain that limits you to sedentary work only will crush your claim if video footage around the doctor’s appointment shows you playing basketball, dancing, jogging, taking out the trash, climbing stairs, or doing other physical activity.

 

High-Quality Legal Representation to Help You Counter Accusations of Malingering

 

Malingering accusations are a dirty – but effective – tactic used by insurance companies to defeat claims or reduce how much money you receive for your losses.

 

Fortunately, a proactive approach can help you overcome this obstacle and make the allegations that you are faking injury or disability backfire on the defendants.

 

Call now for a free consultation.

 

Taking the high road and hoping the judge or jury sees past these malingering claims may not work. Instead, hire a top-rated attorney to prosecute your case and get you every penny you deserve.