According to the Legal Intelligencer, the majority, led by Judge Mary Hannah Leavitt, upheld the workers’ compensation judge’s decision to terminate the benefits of a claimant who it determined, based on medical testimony, was exaggerating symptoms such as headache and dizziness.
Leavitt said in her opinion that Neil Folmer’s symptoms have no objective support and that an employer would be powerless to meet its burden of proof if the only way to show physical recovery from injuries that cannot be seen was for the claimant to acknowledge the improvement. According to Leavitt, the case boiled down to the Workers’ Compensation judge’s determination of which side’s experts were most credible.
The employer presented the testimony of a neurological surgeon who said a series of tests found no symptoms of positional vertigo or cranial nerve damage, contradicting the testimony of Folmer’s treating physicians, according to the Legal Intelligencer. The surgeon also said an examination of Folmer’s neck revealed no neurological impairment of the nerves or muscles and no herniated disc, but rather degenerative disc disease, which is normal given Folmer’s age.
Senter also testified that Folmer faked a long list of symptoms throughout the examination, including dizziness and muscle weakness, and that the only headaches he complained of were migraine headaches, which could not be related to the work injury. The opinion said the Workers’ Compensation judge granted the employer’s second petition for termination of benefits, saying he had witnessed inconsistencies in Folmer’s behavior — including acting as if he were having balance problems only when he was aware the WCJ was watching him during the hearing.
Leavitt rejected Folmer’s argument that the opinions of the medical experts were incompetent because they did not address all of the injuries he claimed to have sustained in the work accident. Leavitt said the experts “acknowledge each and every one of” Folmer’s adjudicated work-related injuries.
Judge Bernard L. McGinley, in a dissenting opinion, said the ruling would open the floodgates for “unending litigation” in which “all that will be required is a physician to opine that claimant was ‘faking.'”
“An employer may now meet its burden on a termination petition by simply presenting an expert’s opinion that the employee was faking,” he said, according to the news report. “I submit this is no different than unsubstantiated expert testimony that a claimant’s work injury has resolved and it is insufficient, in and of itself, to establish a change in physical condition.”
“By the same token, a doctor’s testimony that a claimant is faking, without medical proof that his physical condition has changed, is not sufficient to support a termination of benefits,” McGinley continued.
The case is Folmer v. Workers’ Compensation Appeal Board.