Malingering

Boster v. Liberty Mutual Fire Ins. [12/19/02] 2002 MTWCC 64 Claimant who has not worked since 1994 back injury not entitled to total disability benefits where Court was absolutely persuaded, based on entire record, including video surveillance tapes, and observation of claimant during trial, that claimant was exaggerating his pain, was unmotivated, and was simply comfortable with his non-working lifestyle.

Patrick v. State Compensation Insurance Fund [4/4/00] 2000 MTWCC 20 Penalty and attorneys fees awarded where adjuster unreasonably limited rehabilitation evaluation to the gathering of information to support her prior conclusion claimant suffered no wage loss and was malingering. Facts suggesting unreasonable delay and denial of rehab benefits included adjuster's hiring of private investigator based only a computer generated "fraud flag," which in turn was based only on claimant's failure to return to work within a predicted period of time, and did not consider claimant's serious preexisting condition upon which work injury was imposed; adjuster's apparent communication to investigator, without any support, that there was no objective evidence of injury and treating physician was "making matters worse"; referral for neuropsychological evaluation without basis; provision of report unfavorable to claimant, but not report favorable to claimant, to expert; and general tendency to ignore evidence favorable to claimant while seeking opinions to support adjuster's conclusion. (After decision, parties settled and presented a Stipulated Judgment to the Court, which then issued its Order Nunc Pro Tunc For Entry of Judgement and Dismissal with Prejudice, Patrick v. State Compensation Insurance Fund, 2000 MTWCC 20A.)

EBI/Orion Group v. Blythe, 1998 MT 90 Substantial evidence supported WCC's determination that respiratory therapist accidently stuck with a needle containing blood contaminated with HIV, but who testified negative for HIV, was malingering mental illness and disability. The WCC properly relied upon numerous factors suggesting malingering, including evidence that claimant was familiar with mental conditions, his scores on a personality test indicated a strong possibility of faking, a nationally-known expert on neuropsychology opined he had never seen a case in which evidence of malingering seemed so overwhelming, and the treating physician's contrary opinion was based on that doctor's acceptance of claimant's credibility, which was not accepted by the WCC after hearing his testimony and reviewing the record as a whole.

EBI/Orion Group v. Michael S. Blythe [6/20/97] 1997 MTWCC 37 On remand from the Supreme Court, see EBI/Orion Group v. Blythe, 281 Mont. 50, 931 P.2d 38 (1997)(Blythe I), the WCC disregarded the opinion of an IME psychologist not licensed to practice in Montana, but nevertheless reached the same conclusion as following trial: that claimant was malingering mental illness and not entitled to WC benefits.

EBI/Orion Group v. Blythe, 1997 MTWCC 39 Even factoring out an IME doctor’s testimony on remand from the Montana Supreme Court, the Workers’ Compensation Court remained convinced that claimant was malingering, based in part on the Court’s perception that claimant was untruthful and its finding of shortcomings in testimony from his physician.