The Power Point reviews various methods used for detecting malingering, and points out that many are erroneous or not cost effective. It offers information about an accurate and cost effective Internet test used to detect malingering, which has been admitted as evidence in many court cases in many states

1. Lecture 23
Malingering:
what stands up in court and what doesn’t
www.MarylandClinicalDiagnostics.com
Nelson Hendler, MD, MS
Former Assistant Professor of Neurosurgery
Former Assistant Professor of Psychiatry
Johns Hopkins University School of Medicine
Past president- American Academy of Pain Management

2. What is Malingering-1*
• Malingering is a conscious attempt to
deceive people, for financial gain, to avoid
dangerous or distasteful work
(goldbricking), or for personal benefit
• Malingerers will not participate in medical
tests, and make excuses to avoid them, to
avoid detection. Medical tests are normal
• Malingerers will intentionally make
themselves appear sicker than they are.
* http://www.slideshare.net/DiagnoseMyPain/malingering-and-how-to-spot-it

3. What is Malingering -2*
• Typically, the malingerer has a history of
multiple arrests, drug or alcohol abuse,
previous workers compensation claims, or
auto accidents, and financial stress.
• Malingerer should be distinguished from
hysterical conversion, exaggerating pain
patients, and misdiagnosed patients, who
are not getting well, due to incorrect
diagnosis and treatment.
* http://www.slideshare.net/DiagnoseMyPain/malingering-and-how-to-spot-it

4. What is not Malingering
• 40%-80% of pain patients are misdiagnosed
• If a patient is not getting well, it is 5 x more
likely that is it due to misdiagnosis rather than
malingering
• Misdiagnosed patients have the wrong
diagnosis and the wrong medical tests
• Objective pain patients have moderately
abnormal medical tests, and exaggerating pain
patients have mildly abnormal medical tests
• Malingers do not have medical test abnormality

5. Malingering vs. Exaggeration
• National Council on Compensation Insurance
(NCCI) published a report Assessing Pain, Real
and Imagined (www.NCCI.com/painreal.html-11/29/98)
• Hendler reports that 10% of Long term disability
and 13% of workers’ compensation claimants
have normal medical tests, and are malingerers.
• For $300, The Pain Validity Test can identify
who will have normal medical tests with 85% to
100% accuracy. This stands up in court.
• Average savings of $1,654/claim by eliminating
IMEs, FCE, surveillance, & nurse case reviewer
in the objective pain patient, and focusing the
resources on detecting the malingerer

6. California Does a Poor Job of
Combating Worker’s Comp Fraud
(Workers Compensation Report, Vol 15, No. 11, p.206 May 17, 2004)
• State Auditor Elaine Howle says the $30,000,000 annual
assessment to combat fraud may be wasted.
• Insurance companies cannot measure the effectiveness of their
efforts using IMEs, FCEs, and surveillance.
• These methods are often disallowed in court as subjective
• The companies are relying on anecdotal testimony, unscientific
estimates, and description of local cases involving fraud.
• The fraud division publishes statistics showing the number of
investigations, arrests, convictions, and restitution, but cannot
show if anti-fraud efforts are cost-effective
• How to detect malingering vs. normal response to chronic pain?
• Use the Pain Validity Test-admitted in 30 cases in 8 states

7. Types of Chronic Pain Patients
Hendler, Diagnosis and Non-Surgical Management of Chronic Pain, Raven Press, ‘81
• Objective Pain Patient: Good pre-morbid
adjustment, objective findings, and goes through
the 4 stages of pain (case study: Car Exec.)
(87%-94% of all chronic pain patients)
• Exaggerating Pain Patient: poor pre-morbid
adjustment, minimal findings, and absence of
depression (case study: hysterical scoliosis).
• (Between 6% to 13% of all chronic pain patients)
• Mixed Objective-Exaggerating Pain Patient:
poor pre-morbid adjustment, objective findings
and very difficult to manage by medical or psych
(case study: sexual abuse, histrionic, TOS, disc)

8. 4 Stages of Chronic Pain in an Objective
Pain Patient- A Normal Response to Pain
(Hendler, in Diagnosis and Treatment of Chronic Pain, Edited by Hendler, Long
and Weiss, Wright-PSG, ’82)
• Chronic pain patients go through 4 stages remarkable
similar to the 5 stages a patient experiences when dying
(Kubler-Ross-’69)- this is a normal response to pain.
• Acute Stage 0-2 months –Pt. expects to get well, so no
psychological changes (MMPI is normal).
• Sub-acute stage-2-6 months- Pt. had anxiety and somatic
concerns develop (MMPI scales 1 & 3 are elevated)
• Chronic stage 6 months-8 years- Pt. is depressed (MMPI
has elevated scale 2, called a pain neurosis by Blumer,
pain prone patient by Pilling, low back loser by Sternbach)
• Sub-chronic stage-3-12 years Pt. resets goals-adaptation
(MMPI scales 1 & 3 elevated, hypochondriasis and
hysteria)

9. Functional Capacity Evaluation-not
good- too subjective
• Functional Capacity Evaluations (FCE) uses isometric (static) strength
to predict dynamic lifting capacity
• In one study, 107,755 male and 23,078 female were tested for strength
using three standard static lifts and four dynamic lifts.*
• The data confirms that standard errors of estimate for all isometric-to-dynamic
predictions make such predictions meaningless for the
purpose for which they are most commonly used.
• Conclusions: The Static Leg Lift, Static Arm Lift and Static Back (Torso)
Lift are not appropriate for making predictions relative to dynamic lifting
capacity.
• Given the degree of error in such predictions employers, clinicians and
risk managers now have substantial objective evidence to call FCE
testing into question. The FCE is often disallowed in court as too
subjective*
*Larry Feeler, James D. St. James, & Darrell W. Schapmire, Isometric strength assessment, Part I: Static testing does not
accurately predict dynamic lifting capacity Work 37 (2010) 301–308 301

10. Independent Medical Evaluations
http://www.chr.com/independent-medical-evaluations-imes/
• Independent Medical Evaluations (IMEs) are occupational health
evaluations performed by a licensed medical examiner who is not
involved in the regular care of the employee.
• They are used by the workers’ compensation system, and are also
used to clarify other occupational health, disability and liability case
issues.
• Usually, these are physicians who see a majority of their patients at the
request of an insurance company, and have either no medical practice of
their own, or small one.
• They provide Second opinions, Peer evaluations. Chart reviews. Legal
testimony, Physical capacity exams, Pre-employment physicals. Fitness
for duty exams, Permanent impairment rating
• The vast majority of their cases require writing an opinion letter for an
insurance company.
• Very often, these physicians are use to determine if the injury was work
related, and do more detective work than medical work

11. Waddell signs as part of an IME
• The original article lists five Waddell's signs. (Waddell G, McCulloch
HA, Kummel E, Venner RM. Non-organic physical signs in low-back pain. Spine 1980; Mar-
April (5)-2: 117-25)
• 1. Superficial and Widespread tenderness or non-anatomic
tenderness –subjective (seen in CRPS I)
• 2. Stimulation tests: Axial loading (actually a Spurling test
which really is pathological) and Pain on simulated rotation,
i. e. bending and turning.
• 3. Negative distracted straight leg raise (seated straight leg
raising, rather than supine-not valuable for facet syndrome)
• 4. Non-anatomic sensory changes: stocking or glove
anesthesia. (Peripheral neuropathy, carpel tunnel or Lymes
disease may manifest as this)
• 5. Overreaction-totally subjective. (Seen with fear of pain)
• In reality, many Waddell signs really are found in other
diseases as indications of pathology, and cannot be used to
detect malingering

12. Waddell Signs as part of a physical exam
• The original article lists five Waddell's signs.
(Waddell G, McCulloch HA, Kummel E, Venner RM. Non-organic physical signs in low-back pain. Spine
1980; Mar- April (5)-2: 117-25)
• Fishbain, et. al., (Pain Medicine, vol. 4, ’03). did a meta
analysis of 61 studies (a review of 61
published articles)
• Positive Waddell signs do not correlate with
malingering, secondary gain, hysteria,
psychological distress, abnormal illness
behavior, nor somatic amplification
• They do not discriminate organic vs. non-organic
problems
• They do predict poor treatment outcome.
• There may be a real organic basis for + signs.

13. No scale on the MMPI can
invalidate the complaint of pain
• MMPI: a 566 true-false question personality
test
• MMPI can not consistently predict the presence
or absence of organic pathology. Four articles
report not one single scale ever correlates,
consistently, with the presence or absence of
organic pathology.
• The MMPI cannot be used to diagnose faking
or malingering. It only measures personality
problems or psychiatric disease.
( Pain, ’85, J. Occ. Medicine,’88, J. Neurolog & Ortho. Med. & Surgery, ’85, Clinical
Neurosurgery, ’89)

14. Comparison
• Pain Validity Test
• Predicts objective
organic test pathology
with 95% accuracy
• Proves that 87%-94%
of all people have valid
pain complaints
• Tested on 794 people
• Available on Internet
• Measure impact of pain
on a person
• Always admitted in
court -8 states
• MMPI -Fake Bad Scale
• Cannot predict objective
organic test using any
scale of the MMPI
• Says 85% of all people
are fakers, even if they
are not
• Tested on many more
• Available on Internet
• Measures psychological
problems
• Thrown out of court as
“junk science”

15. Comparison of Fraud Tests Used
Test Cost Physical or
Verbal
Accuracy
Predicting medical
test abnormality
Accuracy
Proving fraud
MCD Pain
$300 Verbal 95% 85%
Validity Test Functional
$1,400+ physical No
Capacity
Evaluation
correlation
No
correlation
Detectives $2,000+ visual poor variable
Independent
$1,500+ both poor Medical
Medical
Examination
certainty >51%
physical physical poor poor
Waddell signs Part of
MMPI $3,500 verbal Articles report
none
Articles report
none

16. PVT compared to other tests
• The Pain Validity Test is the most accurate &
least expensive way of documenting fraud
• The Pain Validity Test is based on 7
published journal articles by physicians from
Johns Hopkins Hospital (see next slide)
• The Pain Validity Test as been admitted in
court in 8 different states as part of testimony
• The Pain Validity Test offers an objective
method for determining fraud
• Go to www.MarlyandClinicalDiagnostics.com
for more information.

17. Background of Authors of the Test
Research
• Donlin Long, MD, Ph.D. former chairman of neurosurgery
Johns Hopkins Hospital, founder and Director of the Pain Clinic,
Johns Hopkins Hospital, professor of neurosurgery, Johns
Hopkins University School of Medicine
• James Campbell, MD –professor of neurosurgery, Johns
Hopkins University School of Medicine, past president,
American Pain Society
• Reginald Davis, MD – former chief resident in neurosurgery,
Johns Hopkins Hospital, assistant professor of neurosurgery,
Johns Hopkins University School of Medicine, chief of
neurosurgery, Greater Baltimore Medical Center
• Nelson Hendler, MD, MS, former assistant professor of
neurosurgery-Johns Hopkins University School of Medicine,
past president, American Academy of Pain Management
• John Rybock, MD, assistant professor of neurosurgery Johns
Hopkins University School of Medicine, assistant dean for
academic affairs, Johns Hopkins University School of Medicine.

18. This is a small representative sample of the court cases
and depositions where the Pain Validity Test was used as
part of physician testimony and always admitted as
evidence. Go to www.MarylandClinicalDiagnostics.com to
see a sample of the actual test results.

19. More Cases where PVT was used

20. More Cases where PVT was used

21. Daubert Criteria-Rule 702-A
• If you want to know if your expert’s use of the PVT would be
admissible in a federal district court, you should review Rule
702 of the Federal Rules of Evidence.
• That Rule provides:
• If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (l) the
testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.

22. “Fake Bad” Scale of MMPI Disallowed
http://forensicpsychologist.blogspot.com/2008/03/new-mmpi-scale-invalid-as-forensic-lie.New MMPI scale invalid as forensic lie detector, courts rule March 5, 2008
Psychology's most widely used personality test, the MMPI evoked controversy, by
pitting corporate interests against the proverbial little guy.
At issue is the "Fake Bad Scale" that was incorporated into the Minnesota
Multiphasic Personality Inventory for use in personal injury litigation.
Although a majority of forensic neuropsychologists said in a recent survey that they
use the scale, critics say it brands too many people - especially women - as liars.
Research finding an unacceptably large false-positive rate includes a large-scale
study by MMPI expert James Butcher, PhD, who found that the scale
classified high percentages of bonafide psychiatric inpatients as fakers.
(Butcher JN, Arbisi PA, Atlis MM, McNulty JL
The construct validity of the Lees-Haley Fake Bad Scale (FBS). Does this scale measure somatic
malingering and feigned emotional distress? Arch Clin Neuropsychol. 2004 Apr;19(3):337-9; author reply
341-5.)
In two Florida courtrooms, judges barred use of the scale after special
hearings on its scientific validity. In a case being brought against a petroleum
company, a judge ruled that there was "no hard medical science to support the
use of this scale to predict truthfulness.”

23. Validating the Complaint of Pain
• MMPI is not consistent in predicting the
presence or absence of organic
pathology. Not one single scale ever
correlates, consistently, with the presence
or absence of organic pathology (Hendler
et al, Pain, ’85, J. Occ. Medicine,’88, J.
Neurolog & Ortho. Med. & Surgery, ’85,
Clinical Neurosurgery, ‘89)

24. How to use the PVT properly
• Medical research shows
that 10%-13% of claimants
are fakers and malingerers
• The PVT can detect these
cases instead of investing
time and money in
detectives, FCE and IME
• The insurance company
can objectively deny
payment for these cases
• Saves you time and money
• The Pain Validity Test
identifies malingerers with
85% accuracy
• 87%-94% of claimants have
a valid complaint of pain
• Use the MCD Pain Validity
Test to identify clients who
have valid pain complaints
• The MCD Pain Validity Test
predicts who will have
abnormal medical testing
with 95% accuracy.
• 40%-67% of these cases
are misdiagnosed, and 50%
will need surgery to get well
• Use Diagnostic Paradigm
for proper diagnosis

25. Psychiatric Diagnoses in
Chronic Pain Patients
• Conversion reaction is defined as an unconscious
manifestation of a physical problem (usually visible)
without an organic basis (300.11- DSM-IV). This is
very rare. Less than 1 in a 1,000
• Malingering is defined as a conscious attempt to
deceive for personal gain (316.V65.2-DSM-IV).
Patients refuse to go for tests. 10%-13% of cases
• Pain Disorder (307.80- DSM-IV) defined as a pain
for which is there is no medical explanation.
• Somatoform Disorder (300.81- DMM –IV) defined as
a cluster of 4 pain, 2 GI, 1 sexual and 1 pseudo-neurological
symptoms without medical diagnosis.

26. Overused Psychiatric Diagnoses
in Chronic Pain Patients
• Conversion reaction: What is the incidence?
Kemp, Am. J. of Insanity, 1913 less than 1%
of admission to Phipps were conversion.
• Stephens, J. of Nervous and Mental Disease,
’62, less than 2% of Phipps admits were
conversion
• Hendler. N. Neurosurgical Management of
Pain , ’97, Edited by Richard North, MD and
Robert Levy, MD, Chap. #2, reports only 3 of
over 6,000 chronic pain patients had
conversion reactions.

27. Malingering- V65.2-DSM IV
• This is a conscious attempt to deceive
people
• The malingerer picks highly visible
disabilities, like limping, or totally
subjective ones, like chronic pain which
can’t be measured.
• The hallmark of a malingerer is a refusal
to participate in objective medical testing,
which, of course, would detect an absence
of any pathology.
Hendler and Talo, Current Therapy of Pain, edited by Kathy Foley and Richard Payne,
BC Decker, ’89

28. Rational Clinical Approach
• Patients can have both psychiatric disease
and organic pathology co-existing
• Schizophrenics get brain tumors, and
hysterics get disc disease. Psychiatric
disease does not confer an immunity
against getting a medical disease.
• Treat each patient as if they have organic
pathology.
• Give patient the benefit of the doubt.
• See www.MarylandClinicalDiagnostics.com
for the Pain Validity Test

29. What are the Questions?
• Does the patient have a valid complaint of pain?
• Variables: pre-existing psychopathology,
resultant psychopathology, negative tests,
positive tests that do not correlate with the
anatomical complaint of pain (i.e. L5-S1 disc on
MRI: pain in top of thigh = L2-L3)
• KEY Concept: Severe chronic pain produces
consistent psychological and sociological
responses in a patient, regardless of pre-existing
or co-existing psychiatric disease.
• If the response to pain is normal, believe the
patient, not the tests, and keep looking
• People with pre-pain psychiatric illness can also
get medical illness. This is not conversion.

30. From; Hendler and Talo, Current Therapy of Pain, edited by Kathy Foley and Richard Payne, BC Decker, ’89

31. Available Help
• Pain Validity Test is available on Internet to
validate pain, and improve diagnostic
accuracy, as a screening tool to detect
malingering, and supplement the use of
IMEs, and surveillance.
• Preliminary studies (next slide) show an
average cost savings of $1,654/case for
answering the question – “Is the pain
valid?” using Pain Validity Test for $300.
• Average $97,000/case cost containment
for “What is the correct diagnosis and
treatment?” Use the Diagnostic Paradigm.

32. Scattergram of Computer Scored Pain Validity Test.
On the left, 3* is a severe abnormality, 2 a moderate abnormality, 1 a mild abnormality,
and 0 is no abnormality on at least one objective medical test. At the bottom, 8-25
represent the score on the Pain Validity Test. 17 or less is an Objective Pain Patient, 21
point or higher is an Malingering Pain Patient
*3
2
1
0
Malingering
Pain Patient
11/13 = 85%
65/69 = 95%
Objective Pain Patient
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

33. Explanation of the Scattergram
• 87%- to 94% of clients score as an objective pain
patient on the Pain Validity Test.
• Look at Scattergram- Objective Pain Patients have
a 95% chance of having moderate or severe
abnormalities on at least one objective measure of
organic pathology, such as EMG nerve conduction
studies, root blocks, facet block, provocative
discograms, MRI, CT, etc. Medical articles prove
that the MMPI has no predictive medical
capabilities. Insurance companies often claim that
the MMPI does, but can’t prove it.
• Pain Validity Test can identify patients who will not
have medical abnormalities with 85% accuracy.
Only 10%-13% of claimants are malingering.

34. Efficacy?
• Other than the PVT, no test was cost effective
• A literature search using Google, Jeeves,
National Library of Medicine, National Council
of Compensation Insurers, AOL, Yahoo, etc.
never revealed an article documenting the
cost effectiveness of IMEs, surveillance,
P.T., Functional Capacities Evaluations, and
Case Reviews. There were lots of case
reports.
• 54 cases reviewed for “XZY” insurance had an
average of 3.8 IMEs (1-7), and cases were still
active, out of work an average of 3.9 years
• Fraud detection cost were over $5,000/case

35. Conclusions
• Current methods of assessing fraud and
malingering are not cost effective nor accurate.
• Misdiagnosed patients cost insurance
companies much more than fraudulent cases.
• The Pain Validity Test is a reliable method for
detecting fraud and malingering
• Physical therapy has not been documented as
cost effective in chronic pain patient treatment.
• Insurance carriers should demand Evidence
Based Medicine proof of efficacy of treatment.
• See www.MarylandClinicalDiagnostics.com