What is Malingering in Regard to the Long Term Disability Claim Process?
By Ray Bourhis and Alexander MacDougall
It seems that more and more often, insurance carriers are denying claims based on the grounds of what they deem to be “malingering” or “exaggeration of symptoms” and it is important to understand what these determinations actually mean and how they can affect an insureds’ Long-Term Disability (LTD) claim. Malingering is a psychological diagnosis that is defined by the National Library of Medicine as “simulation of symptoms of illness or injury with intent to deceive in order to obtain a goal.” In the context of a LTD claim, this would mean that the claimant is believed to be either feigning or exaggerating symptoms in order to receive their LTD benefits.
The first question to consider is how does one become diagnosed as malingering? Most often, malingering appears to be the diagnosis when the physician that is examining the patient cannot find an objective basis for subjective symptoms. Objective bases include such things as measurable atrophy, MRIs, X-Rays, visible damage and involuntary reflex reactions. Subjective symptoms are those things that cannot be objectively quantified or detected. One of the most common examples of a subjective symptom would be the self-reporting of pain. Doctors do not often have any way to measure the amount of pain a patient is experiencing other than by asking the patient to rate the pain such as by using a scale of one to ten to create a reference point.
When a patient experiences a symptom like pain and the physician is unable to identity a cause it is possible that the physician may consider a diagnosis of malingering.
Exaggeration of symptoms is sometimes used in place of malingering but it has a slightly different meaning. Malingering implies that the subjective symptom is entirely made up by the patient, whereas exaggerating symptoms mean that the physician does not question the existence of the symptom, only the severity. This determination can be made by a physician with the use of certain tests which have the patient attempt to do a certain maneuver that should not cause pain or should not be affected by their impairment. When the patient consistently describes pain where they should feel none or reports a limited range of motion when he or she should have full mobility, physicians may conclude that the patient is exaggerating their symptoms. Insurance companies may also reach the conclusion that a patient is exaggerating their symptoms when observed, using surveillance, appearing to exceed the limitations of their disability. This is often taken out of context, as in the example of a claimant with a physical impairment that is video-taped while exercising that part of their body which is impaired without apparent difficulty. The insurance company determines based upon this, that the claimant is exaggerating their symptoms. However, further investigation may reveal that the claimant was performing rehabilitative exercises as instructed by their doctor in order to prevent their condition from worsening. Unfortunately, this is not an uncommon scenario.
If the claimant has been diagnosed with malingering – either by a treating doctor or by an insurance doctor – a thorough investigation of the medical records is in order to try and determine if the physicians are missing the cause of the symptoms or if there are further examinations or tests that might be performed that would reveal more information about the condition. For a claimant that has been deemed to be exaggerating their symptoms, the first steps depend upon who made the determination. If the determination was made by a treating or insurance physician, a review of the medical records would be a good place to start. However, if the insurance company is basing its opinion upon surveillance, an investigation into what the claimant was really doing at the time they were observed and what his or her limitations truly are would be necessary.
One way or the other, allegations of malingering or exaggeration are serious assertions that affect an insurer’s conclusions about both a claimant’s medical condition and his or her functional impairment. They can make a big difference in the payment of disability benefits.