Some Implications of Failure to Rule out Malingering

I recently conducted a medical records review of a Worker's Compensation in order to determine if the injured worker in fact suffered from PTSD and Pain Disorder as a result of an industrial accident.

There was only one report in the file I was given for review that contained a clinical psychiatric examination of the injured worker. In that report, based on the clinical interview, the psychiatrist diagnosed Posttraumatic Stress Disorder but did not address or rule out the question of malingering. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), malingering should always be ruled out prior to assigning a PTSD diagnosis.

Several months later, the same injured worker was sent to another psychiatrist who conducted a medical records review without a clinical interview. The second psychiatrist agreed with the earlier diagnosis of PTSD and added a diagnosis of Pain Disorder Associated with both psychological factors and a general medical condition.

As a result of the first psychiatrist's failure to rule out malingering, and the second psychiatrist's assignment of a Pain Disorder diagnosis without any assessment of malingering in the file, I wrote in my report that I could not be sure the PTSD or Pain Disorder diagnoses could be substantiated.

The lessons here are as follows:

1. Plaintiff's attorneys should be careful not to accept, without some scepticism, the notion that their client's diagnosis of PTSD is genuine and adequately documented when malingering has not been ruled out. I have written elsewhere that psychological testing rather than interview is needed to rule out malingering. Failure to obtain a clinical exam in which malingering has been ruled out can help to avoid unpleasant surprises at deposition or trial.

2. Personal Injury and Worker's Compensation defense attorneys and insurance companies should require that an assessment of malingering be conducted as an essential element of all psychological evaluations and especially those in which diagnoses such as PTSD and Pain Disorder are alleged. Failure to do so may result in unnecessary awards and benefits for mental disorders that have not be adequately documented.

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When Documentation Fails to Support Psychological Disability

I often review medical records as a part of my evaluation of an individual claiming mental impairment in disability cases involving mental disorders such as Panic Disorder, Posttraumatic Stress Disorder and Major Depressive Disorder . The purpose of this post is to discuss one type of error, made by doctors who examine or treat disability claimants, that can lead to incorrect conclusions. This error involves an assumption that if an individual reports psychological symptoms, that individual is disabled and cannot work, even in the absence of corroborating evidence of the symptoms and impairment of the claimant’s functioning.

It is, unfortunately, quite common for me to review reports that will contain statements like the following as sole corroboration of a mentally disabling condition:

• She has nightmares
• He is struggling with significant symptoms of depression and anxiety
• The claimant made several errors on a “Serial Sevens” task

Having nightmares does not necessarily preclude an individual from working. When I met with this claimant, I learned that the nightmares had been occurring only once per two months and that the claimant last had a nightmare six months before I met with her. I also learned that the nightmares did not prevent the claimant from sleeping 8 hours per night.

Symptoms of depression and anxiety are common manifestations of a variety of mental disorders. But, symptoms of depression and anxiety can also be expressed by individuals with mild mental disorders and by those with no mental disorder at all. In reviewing records in a disability claim, I often read psychotherapy progress notes indicating that the claimant was observed to be anxious or that he exhibited symptoms of depression. The psychotherapist may then conclude that the claimant is disabled and cannot work at all at his usual occupation or any occupation. Yet, the report did not provide examples of behaviors exhibited by the claimant demonstrating that the symptoms interfere with usual functioning in such areas as daily activities or social relationships, or that the symptoms precluded work.

In order to identify mental processing problems, some mental health professionals utilize a task in which the claimant is asked to subtract numbers from another number or spell certain words backwards. On the basis of errors on such tasks, a claimant was described as totally disabled for all work because of impairments of attention, concentration and memory. Yet, this claimant’s cognitive functioning was normal, except for the problems noted, and was not precluded from working as a result of cognitive impairments. Clearly, a problem in counting backwards or spelling a word backwards does not prevent an individual from working in all occupations.

CONCLUSIONS: I often note that medical documents purportedly demonstrating disability do not include objective findings that substantiate mental impairments that preclude work. It is not enough to describe the claimant’s subjective report of psychological symptoms or to state that a claimant is anxious or depressed. In order to prove that a claimant cannot work in any occupation, treating or examining doctors must provide up-to-date clinical findings, backed-up by behavioral observations or psychological test data that document mental impairments that result in significant loss of capacity to function.

Dr. Clayman practices forensic and clinical psychology in Boston, MA, USA. He can be reached at 617 782-8355. More information about Dr. Clayman's areas of expertise can be found at his website by clicking on the Articles button.