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Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Malingerers Everywhere! How Do We Deal with all the Fakers?

At Warnken, LLC, we have so many people calling us for help in workers’ compensation that I often need other people to answer the phone and have the first conversations with our potential clients.  It’s a good problem to have from a selfish standpoint.  We have  a lot of clients.  However, I’m so passionate about getting these people help, it makes me nervous when others speak to them.  Will they treat these injured workers with respect and kindness?  Are they going to go out of their way to convey how much we fight for them?  Do they care like I do about standing up to the system?

One of the people who was going to answer phones and speak to injured workers asked an important question: How do we deal with all the fakers?

I asked how many people she thought were faking it, didn’t want to work, were lazy, or were trying to take advantage of the system?

She said she didn’t know, but it seemed like there would be a lot of them.  She told me her general perception was that workers’ compensation was full of lazy people taking advantage of the system.  She said she thought there was a lot of fraud.  She had done a little research on the Internet, she said.  She knew.  How do we screen out the fakers?

I gave her a simple answer:  We don’t.

I could tell she was a little appalled.  So I let her stew in it a moment before I calmly began to explain.

Depending on which study you choose, 5% to 8% of injured workers are malingering in some fashion.  A small fraction of those aren’t hurt at all.  In other words, far under 1% of all workers’ compensation cases are made up out of whole cloth, where no injury actually exists.  The majority of the 5-8% are very much hurt, they just don’t get back to work quite as quickly as John Wayne would.  Or maybe even as quickly as you or I would.

But he is hurt.  When he picks up his four year old to twirl her in the air, his back hurts like hell.  He tries not to think about it, so she won’t notice.

Could he have gone back a month earlier?  Maybe.  I don’t know.  That’s between him and his God.  But guess what?  His foreman’s an asshole, the general contractor is pushing for a deadline that can’t possibly be met, and everyone around him is cutting safety standards to get the job done.  He had been thinking about applying for other jobs for six months before he fell.

But see, the 4-year old will need a new Barbie at Christmas and the older step-daughter might need braces and nobody has his plan B.  Not his company, not his boss, and certainly not this broken economy that didn’t educate him for shit, doesn’t know how to retrain him, and really doesn’t have enough jobs for men and women like him.  It’s got plenty of jobs for machines, but not jobs for his kind.

Let’s go back to the statistics for a moment.  5% are malingerers.  That’s 1 in 20.  One out of every twenty phonecalls is from someone who will one day in the future be “faking it.”  Here’s the rub…

When you pick up the phone, you don’t know who the faker is.  You can’t know.  If you think you know, it’s just your own preconceived notions coming out.  You’re wrong.  I’ve been on too many of these phonecalls.  You don’t know who the 1 in 20 is.  Can’t know.

Therefore, are you going to treat every call like the 1 in 20, or are you going to treat them like the 19 who desperately need your help?  You can treat them like the 19 or you can go work for the guy down the street.

Because trust me, they need our help.  We can’t fix the economy.  No one can.  The information economy requires vast educational and vocational rehab overhaul.  It will take a generation.  We can’t fix their bodies.  No matter how many medical records we read, we’re not doctors.  We can’t even fix their financial situations.  Depending on which state we’re in, about the best we can do is put a solid band-aid over their financial life, hoping it doesn’t open up and bleed while their bodies heal.

And we’re no saints.  We workers’ compensation lawyers are just trying to feed our families and educate our kids too.  Usually we wind up with a percentage of the “band-aid” money.

But one thing’s for damn sure.  We can treat every client like they’re in the 19 and let the world sort out the 1.  Otherwise, you can answer the phone down the street.

Byron B. Warnken

Disclaimer:  At Warnken, LLC, we do not represent fakers.  If we know someone is lying about his case, lying to the system, or lying to the Courts, we terminate the representation.  Mostly because in this zero sum system, that means less money for those who really need it.  With 100’s of open files, the percentages would say that we have malingerers we are not aware of.  We did, however, eliminate the “Are you a faker?” question on our intake form, potentially exposing us to malingerers everywhere.