Recently, a prominent pain management physician brought to our attention a test that is being included by some neuropsychologists and pain specialists in their evaluations of workers’ compensation claimants. Entitled the “Faking Bad Scale” (hereinafter “FBS”), it was developed to measure the propensity of patients to exaggerate their symptoms and complaints and is now included with the MMPI – II testing conducted by essentially all neuropsychologists. It has been recommended that this test be considered when it is difficult to determine just how severely a Claimant may be injured. However, before it can become a reliable test that is relied upon in the defense of workers’ compensation claims, it is probably important to know a little more about it.
What Is The FBS?
The Minnesota Multiphasic Personality Inventory, or MMPI, was developed in the late 1930s and early 1940s to assist in identifying personality structure and psychopathology. It was revised in 1989 and became the MMPI-II and another revision is due out in July of 2008 called MMPI-II RF. The MMPI-II RF includes three basic types of validity measures: those that were designed to detect non-responding or inconsistent responding, those designed to detect when test-takers are underreporting or downplaying psychological symptoms and those designed to detect when patients are over reporting or exaggerating the prevalence or severity of psychological symptoms (i.e. the FBS).
The MMPI-II FBS was, introduced by several psychologist, including Dr. Paul Lees-Haley, in 1991. The questions on the FBS were not new. In fact, Dr. Lees-Haley picked the 43 true-or-false statements included in the FBS from the more than 500 true-or-false statement in the MMPI. The FBS was initially not included in the standard scoring materials of the MMPI-II but was being used in practice. As a result, the Minnesota Press, publisher of the MMPI-II sought input from experts about adding it to the testing materials. After reviewing the documentation available, the majority of the experts recommended that the FBS be added to the standard scoring materials. However, they noted that the scores on the FBS should be considered in the context of scores on other validity scales, the circumstances of the assessment and any conditions, such as physical injury, that could artificially raise the FBS score.
Including the FBS in the standard MMPI-II has essentially legitimized its use. However, the review process that recommended inclusion of the FBS into the MMPI-II has been brought under scrutiny. Psychologist Paul Lees-Haley, as noted above, helped develop the scale. Some critics indicate Lees-Haley works primarily for defenses in personal injury claims. According to critics of the FBS, at least 10 of the 19 studies considered by the reviewers were conduced by Lees-Haley or other defense psychologists, while other studies were excluded. However, Dr. Lees-Haley has responded by noting that criticism of the FBS is being orchestrated by plaintiffs’ lawyers, including one that has specifically prepared a written guide on how to challenge the FBS in court.
The FBS provides raw scores, like the rest of the MMPI-II, that indicate malingering. In the FBS, according to the validity scales, a score above a 22 should raise concerns about the validity of the self reported symptoms and scores above 28 should raise very significant concerns about the validity of self report symptoms. Critics of the test believe higher cutoffs are indicated to avoid false positives.
The Problems with the FBS
Critics, according to Karen Franklin, PhD, indicate the test “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, who found that the scale classified high percentages of bonafide psychiatric inpatients as fakers. According to Dr. Franklin, on possible reason for this problem is that people with true pain or injury might agree that their “sleep is fitful and disturbed” and that they “have nightmares every few nights.” Answers on questions such as these, can raise a patient’s score.
The FBS In Court
Thus far, it appears Florida has had dealings with the admissibility of the FBS, head on. Last year, in two separate cases, judges barred the use of the scale after special hearings were held on its scientific validity.
In one case, a plaintiff named Lloyd Davidson brought suit against a gasoline carrier, Strawberry Petroleum, Inc, after he was rear ended by one of their tankers while sitting at a red light in May of 2004. His suit stated his head shattered the rear window and he ended up with diminished mental capacity and symptoms of depression and inattention. A psychologist was hired by the defense and presented in deposition that the Claimant showed signs of malingering and “faking” as he had a “very high” score of 31 on the FBS. Before the expert testified at trial, the plaintiff moved for a hearing on the validity of the FBS. Judge Sam Pendino ruled in June that “there is a genuine controversy surrounding the use of this test” and that there is “no hard medical science to support the use of this scale to predict truthfulness.”
FBS and Georgia Workers’ Compensation
Thus far, it does not appear that the State Board of Workers’ Compensation has addressed the use of this test in evaluating whether a claimant is malingering or falsely representing his or her symptoms. There is, of course, a great deal of benefit in being able to better establish what is often apparent from the medical records – that the Claimant is not seeking benefits because he or she is injured, but because he or she does not want to return to gainful employment. The FBS, though controversial, will likely be able to go a long way toward helping to establish that a Claimant is capable of returning to work – despite their protestations otherwise. If nothing else, it might impact the credibility of the Claimant, which can also be useful.
Therefore, at this point and without further guidance from the SBWC or the courts, it is likely a good idea to recommend that this test be conducted when Claimants undergo neuropsychological testing – even if the results might be contested. A local neuropsychologist recently noted, when asked about this test, “Obviously, as with everything we use clinically, you have to INTEGRATE the findings of the FBS scale. Sometimes it is not elevated when I know good and well a client is exaggerating, and sometimes it is elevated for reasons that have nothing to do with intentional malingering. But otherwise, yes, [it] is a valid, reliable, and acceptable measure.”