It is well known to Workers’ Compensation Defense Counsel that symptom magnification occurs frequently in Schedule Loss of Use claims. Major examination range of motion discrepancies are frequent.
When an attending physician or Independent Medical Examiner observe symptom magnification which is documented in writing, WCL §114-a(1) immediately becomes an issue for consideration. In cases where the injured worker engages in symptom magnification at an Independent Medical Examination, a repeat examination by the Independent Medical Examiner is usually not appropriate.
When a claimant engages in symptom magnification, he/she essentially negates any range of motion deficit findings as there is no way to ascertain whether or not the claimant had a lesser deficit or no deficit at all. Upon a finding that a claimant has severely magnified his symptoms, the range of motion findings rendered are always found unreliable with respect to making an objective assessment of the claimant’s loss of use.
When the claimant fails to cooperate and provide full effort at the time of a Schedule Loss of Use evaluation, the claimant is not generally rewarded by the Board for this misconduct. (See Matter of DOCCS Coxsackie Correctional Facility, 217 NY Wrk Comp G1116630; see also DOCCS Wende Correctional, 217 NY Wrk Comp G0739656). We have frequently found that when an injured worker elects to magnify his symptoms to an Independent Medical Examiner at the time of a permanency evaluation, an excellent opportunity exists to avoid a permanency award. In some cases, even a permanent disqualification request may be granted pursuant to WCL §114-a.
– By William Pausley
