Monday, September 29, 2014

Malingering and Modification of Total Disability via LMS/EPA

Malingering and the Employer Remedy for Modification of alleged Total Disability via a Vocational Expert Labor Market Survey and Earning Power Assessment.

An Employer may limit the time duration of total disability indemnity wage loss payments via an Impairment Rating Evaluation. (IRE) A successful IRE results in a limitation of Partial Disability Indemnity wage loss benefits for a duration of 500 weeks, albeit at the total disability compensation benefit rate.

An Employer may limit the amount and duration of indemnity wage loss benefits via a Petition for Modification/Suspension based upon:
 (i)    medical expert evidence of a post-injury physical capacity for a category of work;
(ii)    vocational expert evidence of a post-injury earning capacity via a Labor Market
        Survey (LMS)  and an Earning Power Assessment (EPA);
(iii)   compliance of the employer job offer obligations.

What is the medical evidence requirement for Modification/Suspension?

The Supreme Court of Pennsylvania stated that the employer must demonstrate, with medical evidence, that the claimant's current physical condition has changed since the time of the last disability adjudication. See: Lewis v. WCAB (Giles & Ransome, Inc.), 919 A.2d 922 (Pa. 2007). 

The necessary change in condition has been defined as "any change in the claimant's physical well-being that affects his ability to work. Lewis 919 A.2d at 926. [...not very helpful].

"... it can be the total recovery from an illness or merely the symptoms [have] subsided."
919 A.2d at 926.

Where a modification is based upon earning capacity, it is not necessary to demonstrate that a claimant's diagnoses have changed since the last proceeding, but only that his symptoms have improved to the point where he is capable of gainful employment. 

See: Simmons v. WCAB (Powertrack International), No. 2168 C.D. 2013, a decision of a panel of the Commonwealth Court of Pennsylvania authored by Judge Leadbetter on July 24, 2014.

Factual and Procedural Background

Employee received total disability benefits for a 2001 work injury described as a closed head injury resulting in post-concussive syndrome.
Employer was unsuccessful in 2 prior Termination Petitions.

The WCJ did not make specific findings regarding Employee's condition in denial of the 2nd Termination petition He found employee credible that his subjective complaints remained the same as at the time of the 1st Termination petition proceedings.

In the 1st Termination petition the WCJ credited Dr. Taylor and Employee that  he suffered from depressive disorder, cognitive disorder, post-concussive syndrome.
Symptoms were: headaches, unsteadiness, memory problems, reduced activity, reduced social interaction, depression.

Employee medical evidence (credited by the WCJ) found the symptoms consistent with the diagnoses; there were no signs of symptom magnification or malingering; Employee was not capable of returning to work.

Employer Modification Petition Medical Evidence

Eric Fishman, Ph.D, a neuropsychologist, evaluated Employee in February 2008, administered neuropsych testing and review prior medical records and test results.
His diagnosis was probable malingered neuro-cognitive dysfunction.
He opined Employee was capable of returning to full-time employment.
He reviewed and approved the jobs which were include in the LMS/EPA vocational expert report.

[NOTE: Employee alleged ongoing symptoms, limited activity and disability. His use of a computer was disputed. However, Public website postings included on-line greetings, comments on photos, and other communications. Surveillance documented travel and attendance at auto races].

WCJ Decision

The WCJ made specific findings regarding Employee's activities and the inconsistency with his assertions of total disability!

WCJ granted Employer's petition for Modification.
WCAB Affirmed WCJ decision.
Employee appealed to Commonwealth Court.

Employee Appellate Argument:
The Employee argued Employer failed to demonstrate his condition had changed since the last termination petition proceeding. The Commonwealth Court rejected this argument.

Commonwealth Court Reasoning

"Contrary to Claimant's position, a diagnosis of malingering can be a sufficient change in condition as a matter of law to support a modification of benefits, if it leads the medical expert to conclude that the claimant's disability or ability to work has changed". slip opinion page 10.

Here, the Employer medical expert opinion was supported by evidence of Employee's activities and the WCJ observation of Employee at several hearings, which suggested Employee's subjective complaints were not as severe as he described or had improved since the last proceeding.

The fact that other medical experts found valid test performance and no signs of malingering five (5) years earlier did not preclude a current diagnosis of malingering.


1. This appellate decision provides an additional basis for modification. We know we need to establish a "change" in Employee medical condition. There is some debate as to what "change" is required to establish Employer's burden to proof. 

We know from Folmer v. WCAB (Swift Transportation) (Pa. Cmwlth. 2008) that a "change" in the evaluation of the credibility of claimant's "pain complaints"  can be a sufficient change of condition.  Simmons adds to that line of thinking. 

2. As Employer can never be certain that the WCJ will find claimant "no longer credible", it is prudent to attempt to establish a change of claimant's status via medical expert evidence of:
 (i) a change of physical capabilities; 
(ii) a change of physical exam findings; 
(iii) a change of reported symptoms.

3. Simmons also demonstrates the value of investigation of claimant activities, as a means to challenge claimant's credibility. Examination of public information from social media may document discrepancies from the claimant's professed status. This preliminary (low-cost) type of review, may also form the basis for a more in-depth investigation and surveillance of activities. 

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