Functional Capacity Evaluations in Louisiana Workers Compensation
In most instances where the employer or the workers compensation insurance company cannot provide a modified job for an injured employee, but where the employee’s doctor releases the employee to work with restrictions (such as light-duty), the workers compensation insurance company will appoint a vocational rehabilitation counselor (or “vocational rehabilitation specialist”) to conduct a Labor Market Survey, and in some cases, a Functional Capacity Evaluation (FCE), to identify jobs within the employee’s geographic area that actually available and that are a match with the employee’s skills and present physical ability (as per the doctor’s written restrictions).
So, during the vocational rehabilitation process, the workers compensation insurance company will often have the injured employee undergo a Functional Capacity Evaluation (FCE), which is basically an examination by a physical therapist in order to determine the employee’s physical ability to perform specific physical functions.
A Functional Capacity Evaluation (FCE) typically consists of a series of physical exercises administered over several hours. Usually, the FCE includes standing, climbing, lifting weights, carrying boxes, squeezing calipers, and other similar activities.
The workers compensation insurance company will use the Functional Capacity Evaluation (FCE) to attempt to ascertain an employee’s work capabilities and form the parameters of what type of work activity the employee is able to perform.
The workers compensation insurance company pays for the functional capacity evaluation, and often repeatedly works with the same therapists administering the Functional Capacity Evaluation, in order to get the results that the insurance company wants.
The FCE therapist then uses the measurements from these activities to produce a Functional Capacity Evaluation report that identifies the type and duration of physical labor that the injured employee can perform.
The workers compensation insurance company will then use this Functional Capacity Evaluation (FCE) report to claim that the employee can return to employment and thus does not deserve lost wage benefits.
So, unfortunately, the bottom line is that, like most of the actions taken by the workers compensation insurance companies, the purpose of a Functional Capacity Evaluation (FCE) is to give the insurance company the ability to terminate the employee’s indemnity (or lost wages) benefits.
Thus, a Functional Capacity Evaluation (FCE) is almost always used to the detriment of the employee, not the benefit of the employee, because it is used to eliminate an employee’s lost wages benefits.
WHAT EXACTLY IS A FUNCTIONAL CAPACITY EVALUATION IN LOUISIANA WORKERS COMPENSATION?
In Louisiana workers compensation, a Functional Capacity Evaluation (FCE) is basically a series of tests administered by a physical therapist that attempts to simulate the physical requirements of the employee’s job or other potential jobs for the injured employee.
So essentially, a Functional Capacity Evaluation (FCE) serves to test the physical abilities of an injured worker in Louisiana workers compensation.
A Functional Capacity Evaluation (FCE) typically consists of a series of physical exercises administered over several hours, but the FCE could take up to eight hours. Very rarely would a Functional Capacity Evaluation last longer than a single day.
A Functional Capacity Evaluation (FCE) will mainly measure the employee’s strength, flexibility, and stamina, sometimes cognitive abilities.
WHAT TESTS ARE PERFORMED IN A FUNCTIONAL CAPACITY EVALUATION?
Common tests in a Functional Capacity Evaluation (FCE) include:
- Lifting weights or other items;
- Carrying boxes or other items;
- Squeezing calipers;
- Pushing and pulling;
- Positional tolerance;
- Range-of-motion testing;
- Hand dexterity testing;
- Cognitive tests; and
- Other similar activities.
During these tests, the functional capacity therapist will examine and attempt to record both the injured employee’s ability to complete the tests and the amount of pain which the tests cause the injured employee.
WHAT ARE THE GOALS OF A FUNCTIONAL CAPACITY EVALUATION?
Specifically, a Functional Capacity Evaluation will attempt to answer the following questions:
- Can the injured employee return to work safely?
- What type of work can the injured employee safely return to?
- What types of work accommodations could possibly allow the injured employee to return to work?
- What type of job can the injured employee physically handle?
- What type of physical lifting tolerances can the injured employee safely handle?
- What are the injured employee’s physical and cardiovascular endurance limitations if able to return to work?
- What are the injured employee’s tolerances (both time-wise and position-wise) for standing, sitting, walking?
- How intense and prolonged is the injured employee’s pain?
So basically, the workers compensation insurance company will use the Functional Capacity Evaluation (FCE) to attempt to ascertain an employee’s work capabilities and form the parameters of what type of work activity the employee is able to perform.
Following the Functional Capacity Evaluation (FCE), the worker’s treating physician will typically review the Functional Capacity Evaluation (FCE) report and often make a recommendation on whether the employee is capable of returning to work, and, if so, to what type of employment the injured employee is capable of returning.
REQUESTS FOR FUNCTIONAL CAPACITY EVALUATIONS IN LOUISIANA WORKERS COMPENSATION
The Academy of Orthopedic Physical Therapy defines a Functional Capacity Evaluation as “a comprehensive performance-based medical assessment of an individual’s physical and/or cognitive abilities to safely participate in work and other major life activities.”
Basically, a Functional Capacity Evaluation can be used to determine what type of work (if any) an injured employee is capable of returning to should this employee not be capable of returning to his or her prior job position.
For this reason, an injured worker will generally be obligated to undergo a Functional Capacity Evaluation (FCE) if a proper request is made.
WHO CAN REQUEST A FUNCTIONAL CAPACITY EVALUATION?
Functional Capacity Evaluations are typically requested by:
- Insurance claims adjusters;
- Medical case managers;
- Vocational rehab counselors; and
- Injured workers.
Basically, any party with an interest in a workers compensation claim is entitled to request a Functional Capacity Evaluation. Usually, this means:
- The injured employee or the injured employee’s representatives;
- The injured employee’s medical providers;
- The employer or its representatives; or
- The workers compensation insurance company or its representatives.
Usually, however, it is either the employee’s treating physician or the workers compensation insurance company (or its representatives) who typically request a Functional Capacity Evaluation during a workers compensation claim.
A workers compensation Judge could also order a Functional Capacity Evaluation on his or her own, though this rarely actually occurs.
Also, a Functional Capacity Evaluation cannot be administered without the employee’s consent.
But, if an injured worker refuses to participate in the Functional Capacity Evaluation, his or her workers compensation benefits – including lost wage benefits – may be reduced or eliminated.
However, typically, a workers compensation Judge would need to determine that the injured worker does not have a valid basis on which to refuse participation in the Functional Capacity Evaluation.
WHY ARE FUNCTIONAL CAPACITY EVALUATIONS REQUESTED?
Functional Capacity Evaluations are routinely utilized in workers compensation claims, and can be used to address a number of issues, such as:
- Determining an injured employee’s ability to return to work;
- Forming the parameters of what type of work activity the employee is capable of performing;
- Determining a permanent impairment rating; and
- Determining the need for medical care.
In fact, according to the Academy of Orthopedic Physical Therapy, frequent indications for a Functional Capacity Evaluation include, but are not limited to, the following:
- Functional testing performed as part of the work rehabilitation process, such as a safe entrance into an advanced work rehabilitation program. This may involve the Examiner selecting the most relevant tests for a gap analysis between the individual’s safe abilities and the job demands. The results are used for program development, to assess progress during the episode of care and as the basis for work recommendations and accommodations, if appropriate.
- The individual has been participating in ongoing treatment and performance measures used during treatment may be used in combination with further testing to reach conclusions about the individual’s ability to safely participate in work and other life activities during their recovery.
- The individual has reached maximum rehabilitation potential. Current physical and/or cognitive abilities are requested to assist with claim closure.
- The individual is working, but difficulty performing job tasks has been reported or observed. A job-specific FCE should clearly identify whether there are gaps between safe, functional abilities and job demands.
- Healthcare provider’s report that there is a discrepancy between the individual’s subjective complaints and objective findings and the FCE is requested to identify the individual’s level of participation, consistency, and behaviors during the evaluation.
- Physical and/or cognitive abilities data are needed for case management, disability determination, determination of loss of earning capacity, litigation settlement, or case resolution.
- Physical and/or cognitive abilities are needed to help with a job-placement decision.
- Physical and/or cognitive abilities are needed to assist with future rehabilitation or vocational planning.
Also, the injured worker’s treating physician often requests a Functional Capacity Evaluation in order to obtain information about the worker beyond what the physician would be able to determine during a typical evaluation of the worker by the physician (which would usually consist of just a short office visit with the doctor in which a physical examination is performed).
A Functional Capacity Evaluation allows the treating physician to obtain more extensive data to employ in generating his or her opinions, which must be expressed with reasonable medical probability and be of the quality that they would be considered as substantial.
Since these options are critical not only for the medical treatment aspects but also for the legal aspects of a workers compensation claim, it is important that the treating physician have as much accurate information available about the employee’s condition as possible.
Thus, for example, a treating physician will often want to review a recent Functional Capacity Evaluation report before signing off on any potential positions provided in a Labor Market Survey during the vocational rehabilitation process.
HOW ARE FUNCTIONAL CAPACITY EVALUATIONS HANDLED IN LOUISIANA WORKERS COMPENSATION?
WHO ADMINISTERS FUNCTIONAL CAPACITY EVALUATIONS?
Generally, Functional Capacity Examinations are performed by physical therapists known as Functional Capacity Examiners.
The Academy of Orthopedic Physical Therapy defines a Functional Capacity Examiner as “a physical therapist or occupational therapist licensed in the jurisdiction in which the services are performed, who can demonstrate evidence of education, training, and competencies specific to the design, administration, and interpretation of FCEs.”
Typically, physicians or doctors do not perform Functional Capacity Examination, because they do not have the requisite skills and experience to do so.
In fact, physicians are much more adept, and their time much better utilized when providing medical treatment to patients, rather than gathering data for a Functional Capacity Examination.
HOW SHOULD FUNCTIONAL CAPACITY EVALUATIONS BE HANDLED?
Again, the Academy of Orthopedic Physical Therapy defines a Functional Capacity Evaluation as “a comprehensive performance-based medical assessment of an individual’s physical and/or cognitive abilities to safely participate in work and other major life activities.”
According to the Academy of Orthopedic Physical Therapy, Functional Capacity Examiners are expected to:
- Utilize the best available evidence from clinically relevant research when designing and performing Functional Capacity Examination protocols;
- Utilize the best available evidence when forming conclusions about an individual’s ability to safely participate in work and other major life activities;
- Use a client-centered approach in which the examiner gathers information to understand what is currently essential to the individual and to identify past work experiences that may assist in the understanding of the current issues; and
- Be able to demonstrate a post-professional level of knowledge and clinical expertise across a broad spectrum of medical, vocational, psychological, cognitive, and functional testing concepts.
The Academy of Orthopedic Physical Therapy also defines the four major components of a Functional Capacity Examination to include the following:
- An intake interview;
- A medical records review;
- A physical examination; and
- Content valid functional testing.
In fact, Functional Capacity Evaluations should be performed accordingly to the national guidelines published by the American Physical Therapy Association.
These guidelines published by the American Physical Therapy Association were developed to provide a current best practice, as opposed to a standard of practice. This means that a Functional Capacity Examiner may deviate from the current publication of the guidelines when necessary and appropriate in the course of using independent and judicious clinical reasoning.
In other words, the American Physical Therapy Association guidelines are what the examiner should do, not what the examiner must do.
In a Functional Capacity Evaluation, the Functional Capacity Examiner should rely on objective clinical measurements and observations during the examination, and combine that with objective evidence gathered from a physical examination and a review of medical records.
But at the same time, the Functional Capacity Examiner should also consider subjective evidence gathered from multiple sources, including self-reported pain, disability questionnaires, and the subjective information provided by the injured employee.
Most established Functional Capacity Examination tests meet the following criteria:
- The Functional Capacity Evaluation tests should not lead to injury;
- The Functional Capacity Evaluation tests should produce consistent results;
- The Functional Capacity Evaluation tests measure what the tests were supposed to measure;
- The time and cost involved in the design, administration, interpretation, and reporting of the FCE tests should be reasonable;
- The results in the Functional Capacity Evaluation report should be understandable to non-medical readers; and
- The results in the Functional Capacity Evaluation report should provide useful information.
ARE ALL FUNCTIONAL CAPACITY EVALUATIONS HANDLED THE SAME?
Functional Capacity Evaluations are not are equal and are not all handled in the same exact way.
Also, the outcomes of a Functional Capacity Evaluation can vary greatly, based upon:
- The quality or background of the Functional Capacity Examiner;
- The physical condition of the injured employee at the time of the evaluation;
- The mental state of the injured employee at the time of the evaluation; and
- The thoroughness of the Functional Capacity Evaluation.
Basically, if the Functional Capacity Evaluation is not handled properly, the report and results of the Functional Capacity Evaluation cannot be counted on, meaning that they will not accurately assess the injured worker’s disability or impairment.
WHO DECIDES HOW MUCH TIME IS NEEDED FOR A FUNCTIONAL CAPACITY EVALUATION?
The Functional Capacity Examiner is the decider of how much time is required to design, administer, and interpret the Functional Capacity Examination based on the particulars of the specific workers compensation claim.
Typically, in order to determine how much time is needed for the Functional Capacity Examination, the Functional Capacity Examiner will look to:
- The type of Functional Capacity Examination needed (disability, impairment, occupation-related, or other);
- The physical and/or mental requirement of the job position or occupation in question; and
- How severe, intense, and long-lasting the impairments of the injured worker are.
Usually, a Functional Capacity Examination takes only several hours.
And in most cases, a Functional Capacity Evaluation will not last for more than 8 hours over a 1 to 2 day period. But more time may be needed, particularly in the following situations:
- The injured employee has chronic physical and/or mental impairments;
- The injured employee has reached Maximum Medical Improvement, and permanent work restrictions are required;
- Information is needed about an injured employee’s ability to safely handle work-related activities over a period of multiple days; and
- The injured employee reports chronic fatigue or delayed onset pain.
But on the flip side, a shorter Functional Capacity Evaluation may be proper in the following situations:
- The injured employee has acute physical and/or mental impairments;
- The injured employee has not reached Maximum Medical Improvement, and only temporary work restrictions are necessary for a return to work;
- Only baseline functional abilities are required for participation in a work rehabilitation program; and
- The injured employee only needs to provide helpful information regarding his or her ability to work.
The Functional Capacity Examiner will ultimately be the decider of how much time is required to design, administer, and interpret the Functional Capacity Examination, though any party – including the injured worker or the injured worker’s attorney – could challenge the methods or the results of the Functional Capacity Examination, based on these decisions of the Functional Capacity Examiner.
THE LOUISIANA STATUTE FOR VOCATIONAL REHABILITATION IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute for vocational rehabilitation is La. R.S. 23:1226, which reads as follows:
§1226. Rehabilitation of injured employees
A. When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. Vocational rehabilitation services shall be provided by a licensed professional vocational rehabilitation counselor, and all such services provided shall be compliant with the Code of Professional Ethics for Licensed Rehabilitation Counselors as established by R.S. 37:3441 et seq.
B.(1) The goal of rehabilitation services is to return a worker with a disability to work, with a minimum of retraining, as soon as possible after an injury occurs. The first appropriate option among the following must be chosen for the worker:
(a) Return to the same position.
(b) Return to a modified position.
(c) Return to a related occupation suited to the claimant’s education and marketable skills.
(d) On-the-job training.
(e) Short-term retraining program (less than twenty-six weeks).
(f) Long-term retraining program (more than twenty-six weeks but not more than one year).
(2) Whenever possible, employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.
(3) (a) The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8). The workers compensation judge shall set a hearing date within three days of receiving the motion. The hearing shall be held not less than ten, nor more than thirty days, after the employer or payor receives notice, delivered by certified or registered mail, of the employee’s motion. The workers compensation judge shall provide notice of the hearing date to the employer and payor at the same time and in the same manner that notice of the hearing date is provided to the employee or his attorney. For the purposes of this Section, an employee shall not be required to submit the dispute on the issue of vocational services to mediation or go through a pretrial conference before obtaining a hearing. The hearing shall be conducted as a rule to show cause.
(b) An employee shall have no right of action against a vocational counselor for tort damages related to the performance of vocational services unless and until he has exhausted the administrative remedy provided for in Subparagraph (a) of this Paragraph. The running of prescription shall be suspended during the pendency of the administrative proceedings provided for in this Paragraph.
(c) Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal. Reduction of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).
C.(1) Rehabilitation services required for workers with disabilities may be initiated by:
(a) An insurer or self-insured employer by designating a rehabilitation provider and notifying the office.
(b) The office by requiring the insurer or self-insured employer to designate a rehabilitation provider.
(c) The employee, through a request to the office. The office shall then require the insurer to designate a rehabilitation provider.
(2) Rehabilitation services provided under this Part must be delivered through a rehabilitation counselor approved by the office.
D. Prior to the workers compensation judge adjudicating an injured employee to be permanently and totally disabled, the workers compensation judge shall determine whether there is reasonable probability that, with appropriate training or education, the injured employee may be rehabilitated to the extent that such employee can achieve suitable gainful employment and whether it is in the best interest of such individual to undertake such training or education.
E. When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-six additional weeks if such extended period is determined to be necessary and proper by the workers compensation judge. However, no employer or insurer shall be precluded from continuing such retraining beyond such period on a voluntary basis. An injured employee must request and begin retraining within two years from the date of the termination of temporary total disability as determined by the treating physician. If a retraining program requires residence at or near the facility or institution and away from the employee’s customary residence, reasonable cost of board, lodging, or travel shall be borne by the employer or insurer. A retraining program shall be performed at facilities within the state when such facilities are available.
F. Temporary disability benefits paid pursuant to R.S. 23:1221(1) shall include such period as may be reasonably required for training in the use of artificial members and appliances and shall include such period as the employee may be receiving training or education under a retraining program pursuant to this Section.
G. The permanency of the employee’s total disability under R.S. 23:1221(2) cannot be established, determined, or adjudicated while the employee is employed pursuant to an on-the-job training or a retraining program as provided in Subsections B and E of this Section.
Acts 1983, 1st Ex. Sess., No. 1, §1, eff. July 1, 1983; Acts 1988, No. 938, §1, eff. July 1, 1989; Acts 1989, No. 23, §1, eff. June 15, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §6, eff. Jan. 1, 1990; Acts 1997, No. 88, §1, eff. June 11, 1997; Acts 2003, No. 980, §1; Acts 2004, No. 341, §1, eff. June 18, 2004; Acts 2005, No. 257, §1; Acts 2013, No. 337, §1; Acts 2014, No. 811, §12, eff. June 23, 2014.