Malingering employee? It may be fear that keeps workers off the job

Docs’, employees’ fear of pain or reinjury often slows return to work

A customer service associate for a large company, whose days at work are spent taking customer calls at her desk, injures her back and is determined by her company’s physician to be disabled. Six weeks later, she still has some back pain, so her physician does not clear her to return to work; however, she goes on vacation with her family, plays tennis, and swims.

Does this employee fit the definition of a malingerer — someone who is evading duty or work by pretending to be incapacitated? Not likely, says Dave Hubbard, RN, a disability case manager for Fort Dearborn Life, a BlueCross BlueShield subsidiary in Dallas. What is most often true in such cases, he says, is that a patient with some real — though not incapacitating — pain is afraid or unwilling to push his physician for a return-to-work (RTW) order; or the physician is not experienced enough in disability evaluation or not familiar enough with the employee’s job description to determine that a little back pain will not harm the patient or affect her ability to return to work.

There are ways for occupational health practitioners to better serve both their employer companies and their injured workers, Hubbard says, and a lot of it boils down to motivation — motivating doctors to learn patients’ job requirements, motivating patients to go back to work even if they are not at 100% of their previous ability, and motivating employers to want employees back at less than 100% ability at first.

Reasons for reluctance

"I often think the term malingering is misused when in fact what is actually being referred to is an individual who is less than motivated to return to work and who, with minimal effort, knows that they can remain off work and continue to receive an income," says Hubbard.

Sometimes, the patient is motivated by the comfort of remaining off work while still drawing income. But often, there’s more to it. "Sure, they get more free time to spend on leisure activities, with the family, watching TV, surfing the net," he points out. "They also do not have to deal with a supervisor. It’s often less stressful than work."

But perhaps more importantly, many injured employees believe they simply cannot go back to work. "In the patient’s mind is the worry the injury/ illness will get worse if they return to work," says Hubbard. And the employee’s physician and employer often share this misconception.

What is 100%?

Many injured workers believe they are not obligated to return to their jobs until they are completely symptom-free, he notes. "Quite honestly, it has to do with the physician and the employer," says Hubbard. "The employer often de-motivates the employee, saying the employee has to be 100% [recovered or healthy] before returning. I say, What’s 100%?’"

R.H. Haralson III, MD, MBA, FAADEP, president of the Chicago-based American Academy of Disability Evaluating Physicians (AADEP), contends that fear is a big factor in patients not returning from disability when it’s actually in their best interest to get back to work. "Workers who are injured are frightened. Some are frightened by the injury itself and the fact that they might not recover completely. If it is a back injury, some are frightened by the specter of paralysis, despite the fact that paralysis rarely occurs," he says. "They also are frightened by the specter of never recovering, since they all know someone with a back injury who remains totally disabled. They are worried about being able to earn a living for their family."

Haralson says employees sometimes have been told by co-workers that their companies are going to take advantage of them, or they are suspicious of the company doctor and wonder if he or she is siding with the employer and will rush the employee back to work too early. "They are encouraged to act sick, for they are rewarded for being sick; and the sicker they are, the more they are rewarded," he says.

Work: The best medicine

Studies are showing that with many injuries or other disabilities, returning to work can be a highly effective part of the recovery process, Hubbard says. "People get better quicker, with less residual pain, when they return to work," he says. "Studies have shown that there is an eight times lower incidence of chronic pain when they go back to work than when they stay home, and at eight to 12 weeks [of an employee being off work on disability], the chance of that employee ever returning to work drop to 50%."

James R. Garb, MD, director of occupational health and safety for Baystate Health System based in Springfield, MA, says Baystate has a return-to-work philosophy for that very reason, saying, "Work is therapeutic for people who are injured."

Hubbard and others agree that returning to work does not always mean an immediate resumption of all the duties carried out before the employee went on disability. Some modifications may be necessary for a while, particularly when the employee’s job requires lifting or repetitive motions or activities that would exacerbate the pain or injury that led to the disability in the first place.

An understanding of the employee’s job is critical for any clinician making a determination of return-to-work eligibility, as is considering each employee individually in determining what 100% ability is for that person, he notes.

"My question is, are you talking about 100% [ability] of a 22-year-old, 6-foot-tall, 200-pound male, or his female co-worker who is 60 years old and overweight?" asks Hubbard. "There’s often not a true standard, and lots of employees might use [applying the same standards to both types of the employees just described] as a reduction in force program, to get rid of employees they want to get rid of."

All have roles

Getting an employee back to work takes motivation on the parts of the worker, his or her employer, and the evaluating physician, and each can have reasons to expedite or delay the return to work, experts say. The employee might want to return to work, but fear that if he or she still has any remnant of pain, it’s not safe to go back. On the other hand, he or she might be reluctant to give up the vacation-like conditions of staying home and drawing partial income. The physician may rely too heavily on the patient’s own evaluation of his or her pain, and without a clear understanding of the worker’s job duties, might be reluctant to order him or her back to work when, in fact, it would be safe to do so.

The employer might place too much emphasis on having the employee be immediately at 100% ability upon return to work, when making some concessions for rest breaks or reduced physical activity would return the employee to some level of productivity and get him or her back to full productivity sooner.

If an employee is concerned about some remaining pain but is otherwise physically able to return to work — and, indeed, returning to work would speed recovery — the physician needs to step in, Hubbard says. "Unless a physician sits down and says, Excuse me, this is going to take a few weeks, but you’ll get over it and if you go back to work you’ll get better faster,’ then the patient won’t know that the pain is normal and not a reason to not return to work," Hubbard points out.

On the other hand, sometimes it’s the doctor who needs the push. "Many physicians are not trained in the area of disability evaluation, don’t understand the evidence-based medicine that’s out there, and don’t understand the necessity of returning to work in a timely fashion," he says. "AADEP is doing a lot to educate physicians and nurses in this area."

Some of the employers Hubbard deals with "would rather have nobody in a chair than have someone there who is missing an hour of work a day while they throw up or do some stretching," he says. "We need to be thinking of how we can accommodate these employees on the job. It takes very little, often, to bring them back to work, but the employer doesn’t ask the doctor what that is, and if the doctor doesn’t have a clear idea of the job requirements, he won’t know what accommodations can be made."

Garb says that unless an employer tells the physician what a worker’s job entails (e.g., heavy lifting, repetitive motion, or sedentary work), the physician only can rely on what the patient tells him or her.

Hubbard, the disability case manager, says he asks physicians what their understanding of patients’ job requirements really are — sedentary, light, or medium work. "Many check off that they’re unaware of what the requirements are, and they’ll usually check off at least one grade higher [than the requirements actually are]," he says. "Unless they have experience evaluating disability, physicians don’t ask what somebody does, and even if they do, it doesn’t mean the patient is really going to be honest with them."

Besides checking on an employee’s convalescence while he or she is out of work, the occ-health manager can monitor whether the patient is receiving all the care he or she needs.

"Professional athletes are given trainers and get back out there, but someone who is the sole support of their family is not given the training and support to bounce back as quickly as they should," Hubbard points out. "You have someone with a total knee replacement, who is told how to do physical therapy and then sent home with instructions to just do it, and doesn’t do it as it should be done, has to go back in for manipulation and then back to physical therapy, and you lose eight more weeks of work."

Hubbard references a published study examined a random sample of adults living in 12 metropolitan cities in the United States who had acute and chronic conditions and preventive care, showed that those studied received only about 58% of recommended follow-up care.1 "If only that many receive recommended care, what percentage of patients with claimed disabilities are likely to return to work in a reasonable period of time?" Hubbard asks.

The true malingerer

The injured employee who decides he’d rather not go back to work — or worse, the employee who decided disability is a way to get out of work in the first place — poses a different challenge. According to the American Psychiatric Association, malingering can be expressed in several forms, ranging from pure malingering, in which the employee falsifies all symptoms; to partial malingering, in which the person has true symptoms but exaggerates the impact the symptoms have on his or her ability to function; to falsifying symptoms of an injury or disease when the actual problem is something else, such as substance abuse.

Garb offers some examples of what he calls "problem claims" pertaining to injured workers, and some suggestions for minimizing problems. Company occ-health or human resources personnel should contact injured workers regularly, in a nonthreatening manner, to ask how they are doing, he says. This lets the injured employee know that there is an expectation that he or she will return to work and that the employer wants them back.

According to Garb, more than two months out of work is a signal of potential delay in returning to work; he says he has encountered very few conditions that should keep an employee home that long.

Other indicators of possible true malingering include high absentee rates prior to the injury, reluctance to cooperate with treatment, inconsistent or nonorganic physical findings, two or more weeks of hospitalization, disability out of proportion to the injury, leaves that are extended just before the scheduled return to work, history of alcoholism or substance abuse, litigation pending, labor relations problems, and recent divorce or other family crisis, Garb states.


1. McGlynn EA, et al. The quality of health care delivered to adults in the United States. N Engl J Med 2003; 348:2,635-2,645.

For more information, contact:

  • R.H. Haralson III, MD, MBA, FAADEP, President, American Academy of Disability Evaluating Physicians, 150 N. Wacker Drive, Suite 1420, Chicago, IL 60606. Telephone: (800) 456-6095. E-mail:
  • Dave Hubbard, RN, Disability Case Manager, Fort Dearborn Life, Dallas. Telephone: (972) 996-9313. E-mail:
  • James R. Garb, MD, Director, Occupational Health and Safety, Baystate Health System, 759 Chestnut St., Springfield, MA 01199. Telephone: (413) 794-3726; fax (413) 794-5751.