malingering \ mə-ˈliŋ-g(ə-)riŋ
(verb): to pretend or exaggerate incapacity or illness (as to avoid duty or work)Merriam-Webster
One of the ways insurance companies try to reduce the value of a workers’ compensation claim is by claiming an injured worker is “malingering” or exaggerating symptoms. We recently attended the Georgia Workers’ Compensation Association conference. In a panel discussion at the conference, two defense attorneys and two physicians explained that the telltale sign of malingering involves patients whose symptoms don’t correlate with their doctor’s objective findings. Insurance companies look for injured workers who focus only on their obvious symptoms and do not mention their more subtle symptoms to the treating physician. For example, a diagnostic MRI may show that the injured worker
should have pain on his right side, but the patient reports that his pain is on the left.
Tips to Avoid a Malingering Accusation
There are several things that an injured worker should remember to avoid being categorized as a “malingerer.”
- Don’t be afraid to report that some of your symptoms are resolving while others remain the same. Sometimes an injured worker may be afraid to report improvement in his symptoms. Don’t be afraid!
For example, an worker injured in a slip and fall may suffer injuries to his neck and back. His neck may improve, but the back pain may worsen over time. He should report the improvement in his neck as well as the worsening of his back pain. Not only does this help the doctor formulate a good treatment plan, but it also increases the injured worker’s credibility with his physician.
- Be mindful of surveillance! Your doctor compares your reported symptoms and your observed symptoms. If an injured worker tells his physician that he can only walk for five minutes at a time before resting, he needs to be sure that he is not seen out and about in town walking for 30 minutes at a time. This means even if you are having a day with less pain, do NOT perform activities outside of your restrictions. Make sure all of your activities are well within the work restrictions assigned by your doctor.
- Be straight-forward at your medical appointments. For example, if you see your treating physician and report a pain level of 10/10, but the doctor sees you in the lobby or walking down the hall exhibiting no pain symptoms whatsoever, this is a problem. The same is true if you walk into the office with a cane but the insurance company provides footage of you walking unassisted.
The takeaway here is to be consistent in your pain behaviors. Do not embellish them in front of your doctor.
Red Flags for Physicians
The panel at the seminar also discussed the suspicious nature of adding or changing symptoms. Doctors are wary when a patient reports numerous new symptoms long after the accident date. Another red flag for the doctor is when symptoms move around or change from right to left. That is not to say that your pain can’t change after a procedure or therapy. However, be mindful to always report all your symptoms at the initial visit. Adding new symptoms weeks or months after your accident could lead your physician to conclude that you are malingering.
Finally, when you are approaching maximum medical improvement, your doctor may send you for a Functional Capacity Evaluation. This evaluation determines your work capabilities. Doctors want to see full effort on Functional Capacity Evaluations before assigning permanent work restrictions. Giving inadequate effort on these tests may provide your doctor with the ammunition he needs to say you are malingering.
Impact of a Malingering Label
Insurance companies use surveillance and malingering labels to reduce the value of your case settlement. Insurance companies strategically assign investigators near the time of settlement to see if they can find injured workers doing things they should not be doing. They will also send questionnaires or set conferences with your treating physician just before settlement to try to obtain an opinion that you may be malingering. If they are successful in convincing your doctor that you are malingering, this will be used as a tactic during settlement negotiations to reduce the value of your claim. At Sadow & Froy, we always take the time to advise our clients about these issues so that they are not labeled as “malingerers” by their treating physicians This results in higher settlements and great outcomes for their cases.
Sadow & Froy solely represents seriously injured workers in workers’ compensations cases. The highly respected lead attorneys are on several “Best of” lists including Atlanta Magazine’s Super Lawyer lists. Both attorneys have received numerous industry awards. To see if your case qualifies for workers’ compensation, benefits visit our website for a free evaluation.