A woman thinking about malngering and workers comp


    If you have been injured on the job, you may deserve workers’ compensation benefits. These benefits can help you stay afloat financially while you recover. Employers or a workers’ compensation insurance adjuster may look for ways to reduce or eliminate those benefits — being falsely accused of malingering may prevent you from getting workers’ compensation. If you have been wrongly accused of malingering, you need an experienced workers’ comp attorney on your side.

    The attorneys at Frommer D’Amico know how to handle malingering accusations. We can help you receive the benefits you are entitled to. To help you navigate the process, we cover the malingerer definition, reasons for malingering, signs of malingering and how malingering can affect your workers’ comp claim.

    What Is Malingering?

    Malingering is the falsification or exaggeration of an injury or illness to gain a benefit. For employers and employees, malingering is a term often used when an employee is suspected of faking or exaggerating an injury to receive workers’ compensation payments. 

    Malingering could also refer to an individual feigning an injury or disorder to avoid working, access drugs or medications, continue receiving benefits or increase the value of their claim for settlement. The term can refer to such feigning or exaggeration from the onset. It may also describe an employee stretching an injury or disorder beyond what is believed to be the necessary amount of time for that particular issue.

    Employees may be accused of malingering when they file for workers’ comp benefits. This accusation could come from the employer or workers’ comp program administrators. The assumption of malingering can be unfair and potentially harmful to dedicated employees who have genuinely been hurt on the job and are entitled to workers’ comp benefits.

    Medical Malingerer Definition

    The medical definition of malingering is pretending to be ill or exaggerating symptoms to get an external benefit. Feigned illnesses can be physical or mental. According to the fifth edition of the Diagnostic and Statistical Manual of Mental Diseases (DSM-5), malingering is not a psychiatric disorder. Instead, it is an act, not a condition.

    Malingering may be confused with factitious disorder, which is another type of behavior that involves feigning illnesses. Those with factitious disorder are not feigning illnesses with the hopes of gaining any benefits from their issues. Factitious disorder is considered a mental illness, whereas malingering is not.

    Reasons for Malingering

    People may engage in malingering for an external benefit rather than a physical reason. A person may engage in malingering to:

    • Avoid work
    • Get attention
    • Avoid school
    • Avoid military services
    • Take paid leave from work
    • Obtain drugs like pain medication
    • Receive rations or economic compensation
    • Avoid legal problems or processes, such as trial

    If someone has motive to gain or avoid something, this could be a reason for malingering.

    How to Prove Malingering

    It is difficult to prove one is malingering. As noted previously, there are psychological conditions with symptoms similar to those behaviors malingers exhibit. We can instead look to discovered similarities between malingering individuals to assess whether or not someone is malingering.

    Malingering can be tied to socioeconomic conditions, such as poverty or lack of sanitization or employment. That is, malingering individuals may be more likely to face or have faced inequities or a lack of resources in their lifetime. Further, a disproportionate number of malingering individuals have unmet needs for psychiatric treatment and resources. 

    The following may be signs of malingering:

    • Presence of anti-social personality disorder
    • Legal or medical circumstances that could be improved by a diagnosis
    • Lack of compliance with the doctor’s treatment regimen and follow-up care
    • Noticeable discrepancy between the person’s claims of illness or injury and the person’s medical exam and observable symptoms

    Challenges in Diagnosing Malingering

    Even if the above criteria are present, the individual may not be malingering. Some experts believe this criteria has flaws, so other tests may need to be performed to properly diagnose malingering. Doctors will want to conduct a thorough examination to rule out actual psychological or physical conditions. 

    This comprehensive examination can be time-consuming, requiring a physician to:

    • Perform a physical exam
    • Conduct an open-ended interview
    • Get a timeline of relevant events
    • Analyze the patient’s medical history
    • Conduct a follow-up exam

    If objective medical tests cannot confirm the patient’s condition or symptoms and a doctor suspects malingering, they could reach out to the patient’s co-workers, family, friends and other doctors to learn more about the patient’s health.

    Conditions That Must Be Ruled out to Determine Malingering

    It can be difficult to determine the prevalence of malingering. Depending on the diagnostic systems used, malingering among those claiming to suffer from chronic pain could range between 20% and 50%. Before it can be determined that someone is malingering, other conditions need to be ruled out, such as:

    • Physical illness
    • Hypochondriasis, or worrying that you are sick
    • Conversion disorder, or physical symptoms without an explanation
    • Dissociative disorder, a mental disorder that involves a disconnection between thoughts and surroundings
    • Somatic symptom disorder, or a distressing focus on physical symptoms
    • Mood disorders like mania or depression
    • Factitious disorders like Munchausen syndrome
    • Thought disorders like schizophrenia or psychosis

    How Malingering Can Affect Your Workers’ Comp Claim

    If you have been wrongly accused of malingering after you file a workers’ comp claim, you may face additional hurdles to getting the benefits you may be entitled to.  

    How to Avoid Being Accused of Malingering

    Though anyone who files a workers’ comp claim can be accused of malingering, there are a few tips you can follow to lower your risk of being accused:

    • Be honest about your symptoms and pain level. 
    • Avoid requesting a specific medication from your doctor, as they may assume you are solely seeking drugs rather than treatment.
    • Focus on your condition rather than on your claim so the doctor knows you are not simply seeking compensation.
    • Try your best on your physical and mental exams, as scoring drastically lower than expected could be considered a red flag.

    What to Do if You Are Accused of Malingering

    If a workers’ comp insurance company physician has wrongly accused you of malingering, there are steps you can take to prove you are actually injured or ill, such as:

    • Provide your past medical records: If your past medical records show you have rarely been injured or ill, these records could support the legitimacy of your claim.
    • Obtain a written statement from your doctor: If it has been over 90 days since your first workers’ compensation doctor’s visit, go to your primary care doctor who has been treating you for years and get a written statement that verifies your symptoms or condition. If it is within 90 days, you will need to see an employer-approved doctor. Objective medical evidence can help your case. 
    • Hire a workers’ comp attorney: Countering an accusation of malingering as quickly as possible can help your claim. One way to do so is hiring a workers’ comp attorney who can help you navigate the process.

    Accused of Malingering? Contact Frommer D’Amico to Learn More About Our Services

    To address a malingering accusation, we recommend hiring an experienced attorney. Without an attorney on your side, you may be forced to go back to work before you have recovered, or you may be forced to accept a low settlement offer. You have just 120 days after sustaining your injury to report a work injury to your employer and no longer than three years to file a claim with the Pennsylvania Bureau of Workers’ Compensation apply for workers’ compensation in Pennsylvania. At Frommer D’Amico, our workers’ comp attorneys can help you through every step of your case.

    We have experience in assisting our clients with various workers’ compensation challenges. Contact us at Frommer D’Amico to learn more about our services and if we can help.






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