A test designed to expose less than legitimate personal injury suits is being used more often by disability insurance companies. The test, known as the “fake bad scale” (“FBS”), is being used as a tool to discredit disability claimants insurance benefits.

Various courts have barred the introduction of the FBS into evidence finding the test to be invalid. Even some psychologists say the test is labeling as liars too many people who have genuine symptoms. The disagreement among legal and relevant scientific community, however, has not deterred disability insurers from using the test as another weapon to fight off legitimate disability claims. Specifically in the ERISA context courts have allowed insurers to rely on the test in denying claims.

In Menge v. AT&T Mr. Menge made a number of arguments in an attempt to convince the court that his disability claim had been improperly denied. During the course of the claim, Mr. Menge underwent testing by his physician, which incorporated the FBS validity scale. Apparently, the FBS suggested that Mr. Menge may be exaggerating his symptoms.

Mr. Menge argued that the test is notoriously unreliable and very controversial in the psychological world and that, therefore, the plan abused its discretion by relying upon the results. Although the court acknowledged that the test is controversial it found that it was not an abuse of discretion for the plan to rely, in part, on the results to deny the claim.

This case teaches us that disability claimants and their doctors should be aware of critical literature and controversy surrounding any test that is used in diagnosing a claimant’s illness or disability as well as any controversy surrounding any validity measures employed.