How to Handle A Functional Capacity Evaluation in Louisiana Workers Compensation

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In Louisiana workers compensation, a Functional Capacity Evaluation (FCE) is basically a series of questions and 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.

Common tests in a Functional Capacity Evaluation (FCE) include:

    • Standing;
    • Climbing;
    • Stooping;
    • Balancing;
    • 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.

So essentially, a Functional Capacity Evaluation (FCE) mostly serves to test the physical abilities of an injured worker in Louisiana workers compensation.

During these tests, the Functional Capacity Examiners 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.

Also, at the examination, the Functional Capacity Examiner will take the employee's medical and accident histories and ask about current symptoms, even though this Functional Capacity Examiner will have reviewed the employee's medical records in advance.

Some Functional Capacity Examiners will actually watch an injured employee from the minute the employee leaves his or her car until the moment that the employee returns and drives away.

Functional Capacity Examiners have regularly issued reports which say things like “the patient ran from his car into the building, but then began to limp when he entered the examination room.” 

Injured Workers Must Protect Themselves Against Functional Capacity Evaluations in Louisiana Workers Compensation

Unfortunately, the bottom line with Functional Capacity Evaluations is that the workers compensation insurance companies are attempting to use an unfair, biased and flawed evaluation system to challenge the statements of the injured employees and the conclusions of the employee's doctors.

The very purpose of these Functional Capacity Evaluations is so that the workers compensation insurance companies can reduce or eliminate the employees' lost wage benefits.

And the workers compensation insurance companies also use Functional Capacity Evaluations to try to wear down employees so they accept a low-ball settlement figure. 

But even aside from the fact that the purpose of FCEs is to eliminate an employee's indemnity (or lost wages) benefits, Functional Capacity Evaluations have major problems, including:

    1. Functional Capacity Evaluations unfairly use Validity Tests against employees;
    2. Functional Capacity Evaluations are not reliable in their results; and
    3. Functional Capacity Evaluations can easily be manipulated against employees.

Functional Capacity Evaluations cannot be trusted, whether because of issues with the FCE itself, the employee's misunderstanding of FCE instructions, deficiencies on the part of the FCE evaluators, manipulations by the FCE evaluators, or other elements. 

Validity Tests in Functional Capacity Evaluations

Built into all Functional Capacity Evaluations are exercises and tests that are specifically included for the purpose of measuring whether the injured employee is giving a sincere effort, otherwise known as Validity Testing.

One example of a common validity test performed in Functional Capacity Evaluations is grip testing. Functional Capacity Evaluations Reports often claim that the "data" in the Functional Capacity Evaluation shows that the employee gave inconsistent, subpar or invalid efforts during grip testing.

Another example of a common validity test performed in Functional Capacity Evaluations is heart-rate monitoring. The employee's heart-rate will be monitored throughout the Functional Capacity Evaluation, and if the employee's heart rate fails to reach a certain threshold (usually 80% of employee's maximum heart-rate) following certain exercises or tests, then this heart-rate is interpreted as self-limiting behavior and the entire Functional Capacity Evaluation may be deemed invalid.

Another example of a common validity test trap is when the FCE examiner tells the injured worker to perform exercises or tests that are completely unrelated to both the worker's job position and the worker's medical condition. The FCE examiner will then unfairly claim that the injured worker gave "inconsistent effort" or "unexpected responses" to those exercises and tests and again that that the injured worker "did not give full effort" and "showed self-limiting behavior."

Another common validity test trap is when the FCE examiner tells the injured worker to "stop if he or she feels any pain" and "not do anything to injure himself or herself." But after the injured workers follows these instructions, the FCE examiner will unfairly claim that the injured worker "did not give full effort" and "showed self-limiting behavior."

Of course, the only way to properly measure pain and other symptoms is through the injured worker's own verbal communications, facial expressions, body posture and movementsYet even though it is practically impossible to demonstrate that an injured worker's pain and other symptoms are not consistent with objective medical evidence, Functional Capacity Examiners routinely and unfairly claim that an injured worker "did not give full effort" and "showed self-limiting behavior."

Functional Capacity Evaluation results can impact an injured employee's workers compensation claim if the Functional Capacity Evaluation therapist claims that the employee cannot believed - and thus is not credible - because of the employee's efforts in the Functional Capacity Evaluation process.

Such assertions by Functional Capacity Evaluation therapists - that the employee acted in bad faith - are common, and can affect not only the employee's credibility as far as the Functional Capacity Evaluation, but can also call into question the employee's credibility as to other aspects of the injured employee's workers compensation claim.

Questionable Results in Functional Capacity Evaluations

Functional Capacity Evaluations produce results that are questionable at best, because Functional Capacity Evaluations have never been proven to be reliable or valid.

In fact, very few studies of the reliability or validity of Functional Capacity Evaluations have been published in peer-reviewed journals, even though most other assessment tools - whether in the medical fields or the legal world - have been published in peer-reviewed journals, which is the most common method of scrutiny in most the legal and medical forums.

For example, there have not been any studies to prove that Functional Capacity Evaluations are reliable, meaning whether a Functional Capacity Evaluation should produce consistent results.

In other words, it has not been show through any studies that the Functional Capacity Evaluation results be the same if an injured worker undergoes a Functional Capacity Evaluation twice - which is extremely unfair to the injured worker!

Also, there have been no studies to prove that Functional Capacity Evaluations have sufficient validity, meaning thata Functional Capacity Evaluation test does in fact measure exactly what it was intended to measure. In fact, studies have shown little correlation between what the worker reported and the amounts that the FCE performance tests measured.  

Last, there have been no studies to prove that Functional Capacity Evaluations have Predictive Validity, which means whether the results from a Functional Capacity Evaluation test can be used to predict behavior in the "real world."

In fact, studies have shown that "the validity of a Functional Capacity Evaluation's purported ability to identify claimants who are 'safe' to return to work is suspect" and that "FCE performance does not predict sustained return to work." 

This makes complete sense, since a Functional Capacity Evaluation only takes a few hours on a random day to complete, which makes it very difficult to produce an accurate representation of the employee's functional capacity in a job that requires 8 hours a day, 40 hours a week, and 50 weeks a year.

And yet even though Functional Capacity Evaluations cannot be trusted to be either reliable or valid, or capable of predicting an employee's behavior in the "real world," Functional Capacity Evaluations continue to be used regularly - and relied upon greatly - in Louisiana workers compensation. 

And sadly, many treating physicians in Louisiana workers compensation simply just go along with whatever the therapist who performs the Functional Capacity Evaluation decides.

Manipulated Results in Functional Capacity Evaluations

Unfortunately, it is not uncommon for Functional Capacity Examiners to manipulate the results of a Functional Capacity Evaluation in order to favor the workers compensation insurance company in an attempt to reduce or eliminate an employee's lost wage benefits.

One example of manipulation in a Functional Capacity Evaluation is when a Functional Capacity Examiner consistently instructs an injured worker to stop the test and take a rest break, but then turns around and reports that the injured worker did not give full effort on the Functional Capacity Evaluation because of the observed repeated breaks taken during the evaluation.

Additionally, Functional Capacity Examiners have been known to try to manipulate Functional Capacity Evaluations by wording the Functional Capacity Evaluation report  so as to attempt to convince the treating physician that the worker was faking or exaggerating his or her injuries, or that the worker was ready to return to work or should be related from medical care, when in fact the worker was not physically ready to return to work or be released.

Last, Functional Capacity Examiners almost always report that the employee is ready and able to return to some type of work. But then at that point, the treating physician must overrule the Functional Capacity Examiner's conclusions and provide written reasons to the workers compensation insurance company why the Functional Capacity Examiner's conclusions are incorrect.

How to Prepare for A Functional Capacity Evaluation in Louisiana Workers Compensation

It is extremely important for any injured employee in Louisiana to throughly prepare for a workers compensation Functional Capacity Evaluation, ideally with the help of the employee's attorney.

First, an experienced Louisiana workers compensation attorney will want to determine if the employee should even be having a Functional Capacity Evaluation, by asking:

    • Is there a valid basis for a Functional Capacity Evaluation?
    • Is there a valid basis under which to file an objection to the Functional Capacity Evaluation?
    • What are the repercussions if the Office of Workers Compensation Judge agrees that a Functional Capacity Evaluation is unnecessary?

If the employee is going to submit to a Functional Capacity Evaluation, the employee should take the following steps to prepare for the examination: 

    • The employee should make sure that he or she is extremely familiar with his or her complete medical history. The Functional Capacity Examiner will likely be well aware of the employee's complete medical history, and may ask the employee about all of this medical history, including even minor injuries. So the injured employee needs to be prepared to discuss the entire medical history - including injuries and illnesses big and small, recent and from long ago - and especially any medical history related to the body part injured in the workers compensation accident. Ideally, the employee would have an experienced workers compensation attorney to assist with this.
    • The employee should make sure that he or she is extremely familiar with the employee's complete course of treatment. Again, the Functional Capacity Examiner will likely be well aware of the employee's complete medical history, and may ask the employee about all of this medical history, including even minor injuries. So the injured employee needs to be prepared to discuss the employee's complete course of treatment. Therefore, the employee should review the employee's complete medical records and notes, including all tests, surgeries, procedures and other treatment that the employee has received. 
    • The employee should review his or her current symptoms. The injured employee needs to be prepared to inform the Functional Capacity Examiner of all the employee's current symptoms in detail. The employee should try not to forget any symptoms or limitations, even if that means the employee should bring in personal notes to the examination to refresh the employee's memory.
    • The employee should review exactly how the accident happened. The injured employee needs to be prepared to inform the Functional Capacity Examiner  in detail about exactly how the injury happened. The employee should try not to forget any details, and make sure there are no inconsistencies in the events, again even if that means the employee should bring in personal notes to the examination to refresh the employee's memory. The employee should also discuss these events with his or her attorney ahead of the Functional Capacity Examination.
    • The employee should find out what the workers compensation insurance company has told to and asked the Functional Capacity Examiner. The injured employee should make sure that he or she is fully aware of any information that the workers compensation insurance company has submitted to the Functional Capacity Examiner, especially any information besides the medical records. Ideally, the employee would have an experienced workers compensation attorney to handle this. But often the insurance company will send a letter to the Functional Capacity Examiner that unfairly describes the employee's injury or medical situation in a light that is unfair to the employee.  The employee needs to know what that letter says, so that the employee can refute any unfair or prejudicial information in that letter. 
    • The employee should review exactly what the employee is going to tell the Functional Capacity Examiner about the employee's medical history, medical conditions, and accident history. The injured employee should make sure that he or she is fully prepared and knows exactly what he or she will say when the Functional Capacity Examiner asks "what is your medical history" or "tell me about the accident" or "how are you feeling today." Ideally, the employee would have an experienced workers compensation attorney to assist with this.
    • The employee should try to get a good night's rest the night before the Functional Capacity Examination.
    • The employee should dress appropriately for the Functional Capacity Examination. The injured employee should act in a manner that is consistent with the employee's injury. That means that the employee should wear or bring any devices needed because of the employee's injury, such as a brace, crutches, or a sling. Also, the injured employee should remember that he or she will need to take part in physical activity, so the employee should dress accordingly and wear appropriate clothing that allows a full range of motion.
    • The employee should arrange transportation to and from the Functional Capacity Evaluation. Often the injured employee may be too tired after the evaluation to drive home. Also, the injured employee should not have to stress out about having to find a parking spot or walking from parking to the evaluation location.
    • The employee should plan to arrive early for the Functional Capacity Examination. It is never a good idea to be late for a Functional Capacity Examination, and missing an appointment time can result in a suspension of workers compensation benefits.
    • The injured employee should bring any documentation that he or she is asked to bring. Generally, the employee will be asked to bring ID and perhaps medical or insurance documentation.
    • The employee should plan to bring a friend or relative to the Functional Capacity Examination. A trusted friend or relative can act as an observer in the Functional Capacity Examination, by taking notes, providing emotional support, and acting as a witness.
    • The employee should discuss with the employee's attorney the possibility of the employee's attorney actually attending the Functional Capacity Examination. The employee's attorney can also act as an observer in the Functional Capacity Examination, by taking notes, providing emotional support, and acting as a witness. The employee's attorney can also assist the employee should improper or irregular events occur. 
    • The employee should refrain from taking pain medication or anti-inflammatory medication prior to the examination, if allowed by the employee's treating physician. Refraining from taking pain medication or anti-inflammatory medication prior to the examination will allow the Functional Capacity Examiner  to objectively view the employee's symptoms and medical issues. 

How to Handle the Actual Functional Capacity Evaluation Itself in Louisiana Workers Compensation

Generally speaking, the most important points for the injured employee in a Functional Capacity Evaluation are for the employee to be detailed, thorough and truthful in communicating with the Functional Capacity Examiner, and to give his or her best effort throughout the evaluation, but not to exaggerate any injuries.

Also, the injured employee should not take any pain medication before or during the test unless the employee's treating physician requires him or her to do so, because taking medication before a Functional Capacity Evaluation can give false-positive results.  

It is also very important for an injured worker never to overexert himself or herself and risk injury. And the employee should never force himself or herself to complete an exercise if the employee cannot do so. 

The injured worker should also try to bring a witness to the Functional Capacity Evaluation, in order to record and take notes during the examination.  This witness can help the employee produce evidence to demonstrate that the Functional Capacity Evaluation was incomplete or flawed or inconsistent with the Functional Capacity Evaluation report.  

Communication is extremely important in a Functional Capacity Evaluation, so the injured worker should:

    • Explain in detail all of the physical requirements of the employee's job position to the Functional Capacity Examiner so that the examiner uses the correct exercises and tests; and
    • Be honest with the Functional Capacity Examiner, and clearly and verbally communicate to the examiner at all times about the employee's pain and inability to physically perform any exercise or test.

Last, though the employee may not be able to physically perform every exercise or test at the Functional Capacity Evaluation, the employee should never exaggerate the pain or weakness that the employee might feel, because the Functional Capacity Examiner will include tests that are designed to evaluate the employee's effort and honesty.

For example, some Functional Capacity Examiners ask the employee to lift two objects that are made to appear  as different weights, but actually weigh the same amount. If the Functional Capacity Examiner perceives in such a test that the employee is not using full effort - or is "faking it" - the examiner will note this in the Functional Capacity Evaluation, and use this allegation to attempt to eliminate the employee's workers compensation benefits.

Specific Actions the Employee Should Take at a Functional Capacity Evaluation

An injured employee at a Functional Capacity Examination (FCE) should:

    • Be honest in all aspects;
    • Give the employee's best effort in all tests and exercises;
    • Be polite and respectful;
    • Be specific and detailed in describing injuries and symptoms;
    • Include all injuries and symptoms that are related to the accident;
    • Be truthful about the employee's physical limitations;
    • Explain why the employee's previous injuries are different from the employee's work-accident injuries;
    • Stay calm, and let the Functional Capacity Examiner know right away if the examiner actually hurts the employee;
    • Be aware of the fact that the Functional Capacity Examiner is neither the employee's advocate nor the employee's medical doctor;
    • Be mindful that the employee may be surveilled by an insurance investigator, by wearing braces and using canes; and
    • Limit activities on the day before, the day of and the day after the FCE, due to possible surveillance.

Specific Actions the Employee Should Avoid at a Functional Capacity Evaluation

As for a list of things that an injured employee at a Functional Capacity Evaluation should NOT do:

    • Do not exaggerate or fake injuries, because Functional Capacity Examiners will note exaggeration in the IME report;
    • Do not downplay pain or symptoms;
    • Do not try to be a hero and over-perform;
    • Do not attempt to over-react when touched or prodded;
    • Do not be offended by the doctor's questions;
    • Do not ask medical questions about your treatment;
    • Do not answer questions that are not asked;
    • Do not contribute information beyond the scope of the examination;
    • Do not make small talk;
    • Do not overly compliment the Functional Capacity Examiner;
    • Do not discuss the specifics of the legal case; 
    • Do not discuss any conversations with the employee's lawyer.  

Communication with the Functional Capacity Examiner

During a Functional Capacity Evaluation, communication with the Functional Capacity Examiner is extremely important.

The injured worker must clearly and verbally communicate with the Functional Capacity Examiner at all times during the Functional Capacity Evaluation.

For example, if the employee is in pain, the employee must tell the examiner in detail about the pain; the employee cannot just trust that the examiner knows (from facial expressions or grunts) that the employee is in pain.

The employee must continuously describe the pain in detail:

    • When does the pain occur?
    • Where does the pain occur?
    • How intense is the pain?
    • How long does the pain last?
    • What does the pain feel like?
    • Is the pain a sharp pain or a dull pain?
    • What specific action seems to be causing the pain?

The employee must continue to tell the examiner in detail about the pain as long as the pain continues to last - the employee cannot just mention the pain once!

Also, if the employee is unable to physically perform any exercise or test during the Functional Capacity Evaluation, the employee must repeatedly and verbally communicate to the examiner after or before each exercise:

    • That the employee is unable to physically perform any exercise or test; and
    • The reason that the employee is unable to physically perform any exercise or test.

Otherwise, there is no way way that the examiner can tell why an employee cannot proceed with the test or exercise.

Last, the employee must tell the Functional Capacity Examiner in detail about any medications or problems which prevent the employee from giving a maximum effort. These medications or problems should also be listed and described - in detail and as accurately as possible - in any of the forms that the Functional Capacity Examiner requests that the employee complete.

Doctor Visits Following a Functional Capacity Evaluation in Louisiana Workers Compensation

The employee should attempt to schedule an appointment with his or her treating physician as soon as possible after the employee's Functional Capacity Evaluation.

At this doctor's visit following the the employee's Functional Capacity Evaluation, the treating physician can:

    1. Document the medical records in order to reaffirm the employee's disabling conditions (and work restrictions and limitations) present at the time of the Functional Capacity Evaluation;
    2. Document any of the employee's physical setbacks or injuries that were caused by the actual Functional Capacity Evaluation; and 
    3. Perform the same tests as were performed in the Functional Capacity Evaluation, in order to make sure that no mistakes were made and that the conclusions are the same.  

Of course, the injured worker must explain the situation to the treating physician following the Functional Capacity Evaluation.

This is because a Functional Capacity Evaluation is generally very different from a medical examination.

Functional Capacity Evaluations are designed to test physical limits, and require repetitive physical activities - such as pushing, pulling, lifting, carrying, squatting, and bending - that can be very strenuous and performed for extended periods of time.  

So Functional Capacity Evaluations very often can lead to an exacerbation of symptoms during the days after the Functional Capacity Evaluations.  

So, ideally, the injured worker should meet with and explain the situation to the treating physician following the Functional Capacity Evaluation, and hopefully document the issues at hand and perform similar tests.

Because the bottom line is that if the injured worker does not visit his or her treating physician following the Functional Capacity Evaluation, then the only medical evidence produced related to the Functional Capacity Evaluation is that of the the Functional Capacity Examiner, who is hired by and actively working for the workers compensation insurance company in order to eliminate the employee's lost wage benefits.

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