Don’t Judge an FCE by its Cover

Mar 19, 2019

 

In the arena of workers’ compensation, attorneys heavily scrutinize the credentials of physicians, combing through every certification, publication or piece of education that is susceptible to attack.  Yet FCE examiners, who often voice the final word on workability, are rarely questioned on credentialing or training.  Since an FCE can lead to a dramatic increase in exposure for a client, an FCE report should always be heavily scrutinized when defending a claim.  While it is tempting to skip to the “summary of conclusions” in an FCE report, such a practice can lead to unnecessary or overestimated exposure estimates and increased costs for the client.

First, read the signature line on the report.  A Functional Capacity Evaluation should be performed by a qualified Physical Therapist or Occupational Therapist.  Often, an FCE is performed by a Key Assessment Specialist or Athletic Trainer, who may have no credentialing in physical therapy or occupational therapy at all.

If the voice behind the claimant’s permanent restrictions is not a therapist, highlight the same to the Arbitrator at trial.  In Naomi Hatzel v. City of Chicago (13 IWCC 1117), the Commission affirmed the Arbitrator’s rejection of the FCE findings.  Respondent’s witness, a Doctor of Physical Therapy, testified to the poor quality and poor administration of the FCE.  The Arbitrator noted, “That ATI would have an Athletic Trainer instead of a qualified physical therapist administer the exam is enough to question its validity.”  In a large exposure case, consider having an independent therapist prepare a report (and testify at trial) regarding the quality and administration of the FCE.

An FCE that is not premised on a written job description also lacks legitimacy.  The entire purpose of an FCE is to assess the employee’s physical function in the workplace.  Without knowing what the employee does in the workplace, the entire FCE becomes suspect.  In Martin Jackson v. Dellwood Tires (11 IWCC 0330), the Commission stated that the FCE examiner’s conclusions on workability had no support due to the fact that the examiner relied on petitioner’s self-described duties alone.  If a Petitioner is found to be non-credible at trial, it should be argued that an FCE based on that same petitioner’s self-described job duties is also non-credible.

FCE’s can have other red flags.  If the referral source for the FCE report is not a well-credentialed physician, highlight the same at trial.  Next, an FCE should be performed when Petitioner reaches Maximum Medical Improvement, or when pain has stabilized.  If a Petitioner’s pain is 2/10 on one office visit and 8/10 at the next office visit a week later, an FCE will provide little insight into a Petitioner’s physical capabilities, since those capabilities are in flux.  Finally, an FCE performed at the same facility as the treating physician can suggest bias when the purpose of an FCE is to achieve objectivity.

Before ringing the alarm bells with your client when an FCE arrives at your desk, take the time to carefully examine the body of the FCE report, questioning the quality of the results and administration of the test.  Consider consulting with an independent FCE examiner if you have concerns about the test’s reliability or validity.  Without thorough investigation, FCE findings should never have the final say on the direction of a claim.

 

The NBKL blog is provided for informational purposes; we are not giving legal advice or creating an attorney/client relationship by providing this information.  Before relying on any legal information of a general nature, you may consider consulting legal counsel as to your particular facts and applications of the law.

"The foundation of our longstanding partnership with the firm is based on our shared values of honesty and fairness. They recognize our unique needs and work with us to achieve a desired outcome in a cost efficient and practical manner."

-Larry Collins, Senior Director, Risk Management Marriott Claims Services, Chicago

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