Diagnosis of malingering can be sufficient change in condition as a matter of law to support modification of benefits based on results of labor market survey.

In the decisions dismissing the employer’s termination petitions, the credited medical experts opined that the claimant’s condition was consistent with a post-concussion syndrome–with no signs of malingering–and that the claimant was not capable of returning to work. Based on a Labor Market Survey, the employer then filed a modification petition and offered a medical report from a new IME physician, who administered new tests and concluded that the claimant was malingering and was able to return to work.

On appeal to the Commonwealth Court, the claimant argued that the employer failed to demonstrate that his condition had changed since the last termination proceeding. According to the claimant, the only change recognized by the IME physician was symptom magnification and/or malingering, which the claimant argued did not constitute a change in condition as a matter of law. The court rejected this argument, concluding that a diagnosis of malingering can be a sufficient change in condition as a matter of law to support a modification of benefits if it leads the medical expert to conclude that the claimant’s disability or ability to work has changed.

Case Law Alerts, 4th Quarter, October 2014