Protecting Your Business From Malingerers

Workers’ compensation fraud is a very real problem in California.  Fraud on the part of providers, employees, and even employers costs the taxpayers of the state of California millions of dollars each year.  The legislature has taken bold steps in recent years to help with the issue of fraud, and district attorneys are becoming more aggressive in their efforts to prosecute fraudulent claims.  As a business owner, you should not only be aware of the laws surrounding workers’ compensation fraud, but also know some red flags for fraud and be on the look-out.  One type of abuse of the workers’ compensation system can be seen in malingering.  Malingering in this context means that an employee is either exaggerating or completely faking an injury in order to obtain or extend workers’ compensation benefits.  As you can imagine, this can result in large costs to your business by requiring your business to pay out benefits for a fake or exaggerated work-related injury.


One way to protect your business against malingering is to conduct careful written discovery.  Through discovery requests, you can obtain a copy of your employee’s medical documents involved in the treatment of his or her claimed work-related injury.  You will want to carefully review this documentation, sometimes with the assistance of a health care professional, in order to determine if the type of injury matches up with the medical probability that the injury would be as severe as is claimed by the injured employee.  If you see that the employee is changing medical providers with a high degree of frequency, this is often a red flag for malingering, as malingerers will tend to change doctors once a doctor starts to catch on that the injury is not as severe as the employee claims.  The employee wants to avoid a doctor putting in a medical report that he or she believes the employee is not being truthful or is exaggerating.


Keeping a watch on social media and other social aspects of an employee’s off duty activities can also provide important clues.  You will want to keep an eye out to see if the employee’s claimed disability is in conformity with the activities he or she engages in while not at work.  For example, if your employee is claiming a knee injury but is still running marathons on the weekend, it is an indication that he or she may be malingering.  If your employee has not yet returned to work, if he or she is difficult to reach, it is another sign.  If he or she is truly injured, he or she will probably be often at home and easy to find by phone.


If you have questions about your business and how to protect it from malingerers and other forms of workers’ compensation fraud, call me today at (714) 516-8188.  I am experienced in helping my clients protect their businesses against these issues.

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