One of the most nebulous, omnipresent topics that can loom over a workers’ compensation claim is the concept of whether an injured worker is being forthright and how that is to be assessed.

Kimberly R. Wagner

I had the opportunity to discuss this topic with noted psychologist Dr. Ronald C. Heredia of Good Mood Legal and summarized his thoughts below.

First and foremost, workers’ compensation practitioners should note that the AMA Guides to the Evaluation of Permanent Impairment, fifth edition, clearly states that medical evaluators should be aware of malingering. The guides say:

Malingering is conscious deception for the purpose of gain .. [and] thus requires no treatment.

And:

As it is a behavior which may accompany “nonpsychiatric conditions,” [e]xaminers should be aware of this possibility when evaluating impairments, especially in the context of potential secondary gain such as monetary compensation or avoiding work.

Heredia synonymizes malingering with such concepts as “faking” or “exaggerating.”

In the broad context of assessing these characteristics in an injured worker, it is important to distinguish it from the actual clinical diagnosis of malingering, which, according to Heredia, is very rarely found. Malingering may be diagnosed where there is any combination of the following factors: 

• Medicolegal context of presentation.
• Marked discrepancy between the person’s claimed stress or disability and the objective findings.
• Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen.
• The presence of antisocial personality disorder.

The frequency of malingering is not officially well-researched. One flawed study suggested that it could be seen in as many as 10.4% of cases.

Other sources note surveys show that up to 46% of subjects felt it was acceptable to engage in purposeful misrepresentation in the course of a compensation claim.

Anecdotally, Heredia noted signs of malingering in about 75% of specifically workers’ compensation evaluations that he reviews, including over- and underrepresentation of symptoms. This is definitively more frequent than in a private setting, though possibly in part due to the fact that private treaters are less inclined to suspect malingering in the absence of an obvious ulterior motive, such as financial gain. Even so, a private patient may be motivated by secondary gain and thereby engage in exaggeration to obtain a desired result, such as in a custody dispute or fitness for duty evaluation.

It is important to note here that, in Heredia’s opinion, malingering is not always intentional. Certainly, it is not a condemnatory judgment of a person’s character if it is suspected that a person is exaggerating.

For example, a person who is passionate and impulsive may react to a question or a situation during an examination that overrepresents his true feelings. However, the person may feel compelled to stand by this reaction for fear of appearing less credible. Conversely, a person who is mindful and calculating during an examination may likewise exaggerate though in a way that is actually intentional.

Furthermore, malingering does not always refer to the exaggeration of complaints; it can also encompass the underrepresentation of symptoms. Though the latter is less frequent, it characterizes the same behavior but for different purposes and still for some kind of perceived gain.

Underreporting may be observed in situations where a person is desirous of not appearing weak, whether to the examiner or to some other party, such as the employer, or where a person does not wish to discuss a past trauma. Though the motivation may be different, the result is still the same: a less-than-honest and complete evaluation. Regardless of the way in which an examinee is uncredible, psychological testing is the best way to expose this issue to be corroborated by clinical evaluation.

In any event, Heredia expressed that it is an obligation of every medical-legal evaluator to assess for signs of malingering. Knowing whether an examinee is honest and credible is salient to any kind of examination. As he stated, “[I]f credibility is a top priority, then everything else should fall into line.”

To an extent, psychiatric professionals, especially psychologists, do have an advantage, as their evaluations lend themselves to testing, which is specifically used to measure the validity of patients’ responses. On the other hand, there is also an element of natural compassion, which is expected of mental health treaters and indeed required to establish the necessary rapport with patients. Therefore, practitioners are cautioned to be mindful of these tendencies, both from a medical and legal perspective, to ensure proper neutral analysis of a claimed workers’ compensation injury.

It was noted that psychiatrists are generally more patient-centric, having been trained first and foremost as physicians in medical school, while psychologists focus on the administration of testing and are better equipped to maintain a bird's-eye view of a patient’s condition. The guides do express an awareness of this phenomenon, noting that, in determining an examinee’s motivation, “[C]onclusions are all too often drawn on the basis of prejudice, and many times, an individual’s motivation is not well understood even after careful assessment.”

Indeed, it may not be only the patient’s motivation that can sway the course of an evaluation. A psychological or psychiatric professional may, whether subconsciously or not, be influenced by concerns of angering or disappointing a patient, which could come with repercussions if the patient takes action, such as by lodging a complaint against the evaluator.

Of course, the concept of malingering is not to be isolated from other factors that an examiner must consider in assessing credibility. For example, a person with an underlying diagnosis, such as histrionic personality disorder, may be more prone to dishonesty. Whether that reduced credibility should be chalked up to the disorder, malingering or both is up to the examiner.

Heredia interestingly noted that personality disorders, which onset before adulthood, will generally be the root cause of the patient’s problems. The AMA Guides support this assertion, noting that “[p]ersonality characteristics usually remain unchanged throughout life.” Though many med-legal examiners will hesitate to diagnose a personality disorder, it is something that can be accomplished through the correct psychological testing and clinical examination.

As an aside regarding psychological testing, the most, and perhaps only, beneficial tests are those that contain a validity scale such that an examinee cannot attempt to skew the results. These tests can also help tease out whether a report of an incredible issue is the result of a psychosomatic effect such that the patient truly believes that it is real as opposed to a patient who is consciously and possibly intentionally giving false information.

There is certainly a benefit to administering some extent of psychological testing on every workers’ compensation patient for any kind of injury, if only to provide a baseline for the accuracy of the person’s history.

With respect to present practices used to identify malingering, Heredia recognizes the unique challenges posed by the post-COVID overuse of technology and laments the wide implementation of remote means to evaluate an applicant, especially in the psychological context.

Truly, limiting an examiner’s perception of a patient to a small portion of his physical appearance on a screen with absolutely no consideration of his environment makes it nearly impossible to get an accurate read on significant signposts of his state of mind. Nervous tics or habits that would be highly influential to an observer’s opinion may go unseen.

The presence of a spouse or family member, if undisclosed, could greatly impact how forthcoming an examinee is. To rely exclusively on a remote examination is to accept that things will inevitably be missed and that, therefore, the best practice is not being implemented. To continue with this practice is to recognize that those things may no longer be important in the context of greater convenience for the parties involved, which may ultimately relegate the identification of some signs of malingering to a thing of the past.

Kimberly R. Wagner is an equity partner and the managing attorney of the Bradford & Barthel Ventura office. This entry from Bradford & Barthel's blog appears with permission.