How Do You Avoid Being Accused Of Malingering To Collect Workers' Comp Benefits?

Malingering is usually defined as exaggerating an injury or pretending to remain impaired long after your actual injuries have healed. Insurers say that up to 39% of workers' comp claims involve some form of malingering—and that's bad news for the genuinely disabled. When employers and insurers are suspicious, workers often face unnecessary scrutiny into their lives and can end up accused of fraud even when they're legitimately injured. If you're an injured employee, what can you do to avoid being accused of malingering?   

Understand the signs of malingering.

If you understand the sort of "red flags" that insurers are looking for when hunting down malingerers, you can try to avoid sending those signals. Some of them—like whether or not your injury occurred near a holiday or just shortly after you hired on—aren't really under your control. Others are easier to manage:

  • Make yourself available. If you don't return phone calls, don't show up to your medical exams, and aren't willing to try therapy, you'll give insurance adjusters more reasons to wonder what you might be trying to hide.
  • Be careful about describing your symptoms. If your condition varies from day to day, or even changes throughout each day, be absolutely clear about it to your doctor. Be clear about what makes your pain better (such as rest or muscle relaxants) and what makes it worse (like standing in line or driving for more than a few minutes). If you state that you are "always" unable to drive or "always" unable to lift groceries, you open yourself up to accusations of some type of fraud or malingering if you happen to have a good day and decide to drive to the store.
  • Don't overstate your pain levels in an effort to be taken seriously. When asked to state your pain level from 1 to 10 (and you'll likely be asked at every single visit, with every doctor), keep in mind that anybody at a level 10 is probably bedridden. Even a level 6 is considered enough to interfere with your normal daily activities.

Make sure that you see your own physician.

Ideally, your primary treating physician should be someone that's treated you for a while. Even if you're required to see a company doctor for the workers' comp claim, make sure that you keep regular appointments with your own physician and see your regular doctor for checkups. That gives you an opportunity to make sure that your own physician's records include information about your condition.

If you don't have a longstanding relationship with a physician, this is the time to start to develop one. Avoid discussing your financial situation with your doctor and don't get into a discussion about workers' comp benefits or disability (if you plan to file) until after you've had a chance to be examined and get the doctor's take on your condition. Once you're sure that your doctor knows that your condition is genuine, you can introduce the topic. 

Assume that you're being watched.

If you have a serious injury that is likely to keep you off work for a while, assume that you'll be under surveillance at some point or another, with video cameras rolling. Investigators hope to catch you doing something that you've previously told your doctor that you can't do. Investigators are allowed to watch you anywhere in public, including:

  • outside your doctor's office
  • outside your home
  • in the parking lot of the physical therapy office
  • on the street
  • from a neighbor's yard

Investigators will also try to interview your friends, relatives, and neighbors, hoping that somebody will essentially "tattle" on you and tell them that you're out fishing at the lake or hunting when you're supposedly laid up in bed. For that reason, even if you happen to have a rare good day, it's best to keep the details to yourself instead of sharing with someone that might not turn out to have your best interests at heart.

Hire an attorney to protect your rights.

If you start to feel like your employer or their insurer is questioning your integrity, it's time to hire an attorney (click here for more information)—if you don't already have one. Don't wait until you've already been accused of malingering. Keep in mind that any type of deception involving workers' comp is considered a form of fraud, which means that it carries the potential for criminal penalties.