Up to 39% of Work Comp Claims Involve Malingering

Most workers compensation employees would not think or stoop to actual fraud for a workers compensation claim. Most studies have found actual fraud is 1 or 2 percent of all claims presented.

However, other studies show that malingering might be as high as 39 percent in some area of claims presented.  Sadly both fraud and malingering cases are on the rise.  The basic cause for perpetration is financial gain.

Periodically a workers compensation fraud case may appear in the daily news media.  This usually brings a momentary flurry of concern.   Occasionally, a legislature may be moved to legislative remedy if the cause is really unique or new.

Indications of Malingering:

Malingering is generally difficult to prove.  Workers Compensation courts generally favor employee testimony over employers if there is even the slightest of evidence to the employees.  This is in keeping with the general unwritten directives that the judges shall interpret most liberally in favor of the employee.

Substantial proof by video surveillance, activity checks, medical examinations, witnesses, and unavailability of the claimant are basics that will help employers prove a malingering case.

Adjusters and Employers need to be alert to the few following points that may suggest malingering:

1. The employee is hard to contact.
2. There are great gaps in treatment
3. The claimant often misses treatments, physio therapy, and doctor appointments
4. The employee resists Independent Medical Examinations or fails to show for one.
5. The injury co-insides with reductions in force, vacations, holidays,
6. Symptomology complaints are: vague, don’t connect with normally expected physical conditions, seem exaggerated, or do not co-inside with physical facts of the injury.
7. Reports from doctors, nurse case managers, physio therapists that the employee appears in better physical condition than claimed.
8. The claim was not reported until after termination.
9. The injury occurred shortly after employment.
10. Disability extends longer than normally expected recovery periods.
11. There are no witnesses to corroborate the employee’s history of how the loss occurred.
12. Disagreement between doctors as to disability.
13. Premature or excessive demands for benefits or treatment by the employee.
14. The employment was seasonal and the injury occurred shortly before the end of the employment period or was reported shortly after the employment ended.
15. Lack of organic basis for symptom complaints.
16. Tips from neighbors, fellow employees, doctors, therapists, nurse case managers.
17. The employee has financial problems.
18. Prior claims that may indicate exaggerations, malingering etc.
19. Claimant changes doctors frequently or without authorization,
20. Course of treatment is questionable or not in keeping with the expected injuries due to the mechanics of the injury description.
21. The job performance was below par and the employee was not likely to have a favorable reference.
22. The claimant has a history of multiple claims.

Defense Steps:

As soon as any of the preceding incidents appear the following procedures or more should be employed;

1. Arrange for an immediate medical management by a nurse case manager.
2. Arrange for a specialist Independent Medical Examination.
3. File a petition for benefit and or medical termination. (This can always be withdrawn if facts change before a trial date.  However, if facts are ready by trial date there will be less delay to go forward.  Further non-compliance by claimant to appear for IME can be addressed.
4. Arrange for activity and surveillance video at once.  Be sure the surveillance is set to co-inside with the times it is known the employee will be moving or active. I.e. Doctor appointments, benefit check mail arrivals, weekends, holidays, weather conditions, evening activities, and early morning visits to determine times that may indicate reporting to another job.
5. Unscheduled visits by nurse case managers.
6. Multiple daily attempts to reach the claimant by the adjuster or employer.
7. Unscheduled visits by employer representative and claim adjuster.
8. Explore claimant on all social media and background services.

Others that may be aiding in Malingering:

Plaintiff attorneys stand to have more income the longer the employee receives benefits.  Most jurisdictions limit fees to 20% of benefits.  While the attorney fee might be minimal frequent collections do add up fast.

Attending physicians may also have income for extra treatments.  Many doctors also have the same employee as a private patient.  That means reluctance to offend or question the employee’s motives.

Doctors may tend to over treat to avoid possible mal-practice charges.

Chiropractors, physio therapists, and other medical practitioners gain by frequent visits and treatment.

Pharmacies may not pay attention to or watch for drug abuses.

Conclusion:

Malingering is hard to detect.  Close case management and monitoring is demand by adjuster and employer.  As soon as any indication occurs immediate and proactive defenses must be set in motion.

Author Michael B. Stack, Principal, COMPClub, Amaxx Work Comp Solutions. He is an expert in employer communication systems and helps employers reduce their workers comp costs by 20% to 50%. He resides in the Boston area and works as a Qualified Loss Management Program provider working with high experience modification factor companies in the Massachusetts State Risk Pool.  He is co-author of the #1 selling book on cost containment, Your Ultimate Guide To Mastering Workers Comp Costs www.reduceyourworkerscomp.com, and Founder of the interactive Workers’ Comp Training platform COMPClub. Contact: mstack@reduceyourworkerscomp.com.

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