Problems with Functional Capacity Evaluations in Louisiana Workers Compensation

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Functional Capacity Evaluations Work Against Injured Workers in Louisiana Workers Compensation

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

Problems with Functional Capacity Evaluations

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.

And 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. 

But even aside from the fact that the purpose of FCEs is to 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 Are a Problem in Functional Capacity Evaluations in Louisiana Workers Compensation 

Validity Testing - which is the assessment of the validity of the injured employee's effort - is a problem in Functional Capacity Evaluations that all injured employees need to be aware. 

In fact, 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.

In fact, FCE examiners are required to consider the injured worker's test participation and effort during the FCE, and make a determination about the validity of the injured worker's efforts the FCE.

Examples of Validity Testing in Functional Capacity Evaluations

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 showed 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.

If 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."

Effect of Pain and Other Symptoms on Validity Testing in Functional Capacity Evaluations

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."

Nonetheless, Functional Capacity Examiners are all well aware that pain - or the anticipation of pain or other symptoms - may influence an injured worker's performance during an FCE.

Also, Functional Capacity Examiners are trained to consider the extent to which an injured worker's pain or other symptoms affect the worker's FCE performance or results, and therefore these examiners look for objective physical indications including changes in heart rate, blood pressure, muscle spasm, joint warmth, and swelling.

But still, the only way to properly measure pain and other symptoms is through the injured worker's own verbal communicates, facial expressions, body posture and movements.

Yet 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."

Credibility and Believability Issues Related to Validity Testing in Functional Capacity Evaluations

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 credibility - 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.

For example, many attorneys for the insurance companies have asserted to the workers compensation Judge: "the worker's Functional Capacity Evaluation therapist said he was cheating because he was not giving the effort he said he was, so since he was lying about that, he's also lying that the accident even occurred the way he says it did!"

This is the most common type of credibility and believability claim regarding Functional Capacity Evaluations - that the "data" in the Functional Capacity Evaluation showed that the employee gave inconsistent, subpar or invalid efforts.

However, such credibility concerns are quite subjective and shaky, and can often be explained easily. For example, inconsistent results may not be related to credibility, because a lack of effort could be suggestive of depressive or anxiety disorders if an injured employee with a bad back were afraid of lifting heavy objects.

On the flip side, if the Functional Capacity Evaluation results show consistent efforts and the testing shows validity in the efforts, the Functional Capacity Evaluation will bolster the employee's credibility and believability when it comes to other issues in the workers compensation claim, such as impairment or disability.

And, an experienced workers compensation attorney will know to turn the tables by attacking the credibility and believability of the Functional Capacity Evaluation therapist, such as whether the therapist obtained the data in an accurate way, or even by attacking the credibility and believability of the Functional Capacity Evaluation test itself.

Questionable Results in Functional Capacity Evaluations in Louisiana Workers Compensation 

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.

Reliability in Functional Capacity Evaluations

Reliability refers to whether a Functional Capacity Evaluation should produce consistent results.

In other words, if an injured employee undergo the same Functional Capacity Evaluation twice, will the results be the same?

What about if each time the employee undergo the same Functional Capacity Evaluation, a different examiner is used - will the results be the same then?

Unfortunately, there have not been any studies to prove that Functional Capacity Evaluations are reliable.

Thus, it has not been proven 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!

Validity in Functional Capacity Evaluations

Validity refers to whether a Functional Capacity Evaluation test does in fact measure exactly what it was intended to measure.

But again, unfortunately, there have not been any studies to prove that Functional Capacity Evaluations have sufficient validity.

In fact, however, a 2002 study in the Journal of Occupational Rehabilitation Vol 12(3) Sep 2002, 119-129, by Reneman et al found little correlation between what the worker reported and the amounts that the FCE performance tests measured.  

Also, a 2009 study in the Archives of Physical Medicine & Rehabilitation, 90(2), 302-308, by Gouttebarge et al. found poor validity of lifting tests, and that discriminative validity was not statistically established, and that convergent validity with self-reported pain intensity and disability was poor.

Predictive Validity in Functional Capacity Evaluations

Predictive Validity refers to whether the results from a Functional Capacity Evaluation test can be used to predict behavior in the "real world."

Yet again, unfortunately, there have not been any studies to prove that Functional Capacity Evaluations have predictive validity.

In fact, however, a 2004 study in Spine, 29(8), 914-919, by Gross and Battie, found that Functional Capacity Evaluations did not predict an employee's physical ability function at work 12 months out, and that "the validity of a Functional Capacity Evaluation's purported ability to identify claimants who are 'safe' to return to work is suspect."

Also, in 2006, Gross, Battie & Cassidy published a paper in Journal of Occupational Rehabilitation, 15(3), 285-294, entitled "Functional Capacity Evaluation Performance Does Not Predict Sustained Return to Work in Claimants With Chronic Back Pain."

Accordingly, the predictive validity of Functional Capacity Evaluations is not strong, and that Functional Capacity Evaluations should not be relied upon to determine ability to carry out activities over the course of a day or week.

This is because 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.

Also, Functional Capacity Evaluations can be extremely inaccurate for workers with neck, back or spine injures. Usually, these worker do not have a problem performing a few isolated movements during a Functional Capacity Evaluation, but at the same time it is impossible for these workers to perform those movements repetitively or the course of 8 hours a day, 40 hours a week, and 50 weeks a year.

And for some injured workers with back injuries, simply sitting in a chair for hours at a time or all all day can be very painful or impossible; but Functional Capacity Evaluations cannot measure for or test this types of problems and issues.  

But the Questionable Results Functional Capacity Evaluations Continue to be Trusted

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.

So for these reasons, it is evident that Functional Capacity Evaluations are regularly used to the detriment of the employee, and not the the benefit of the employee, because Functional Capacity Evaluations are used as a means to ultimately reduce or eliminate an employee's lost wage benefits.

Manipulated Results in Functional Capacity Evaluations in Louisiana Workers Compensation 

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.

Again, it is important to remember that the workers compensation insurance company pays for the Functional Capacity Evaluation, chooses the Functional Capacity Examiner, and often repeatedly works with the same Functional Capacity Examiner, in order to get the results that the insurance company wants.

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 this Functional Capacity Examiner would at the same time turn around and report that it was obvious that the injured worker did not give full effort on theFunctional Capacity Evaluation because of the 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.

To fight back against these types of manipulations, the employee should maintain a close open relationship with the employee's treating physician, have written description of the employee's physical job functions, and discuss these physical job functions at length with the treating physician.

The bottom line is that if the injured worker or his or her attorney do not work with the doctor to fight back against these Functional Capacity Evaluation manipulations, then the insurance company will be able to reduce or eliminate the worker's lost wage benefits.

Functional Capacity Evaluations Are Often Used Simply to Eliminate Lost Wage Benefits in Louisiana Workers Compensation

Vocational rehabilitation is owed to an injured worker who cannot return to full duty work following an accident.

However, vocational rehabilitation is almost always used to the detriment of the employee, not the the benefit of the employee, because vocational rehabilitation is used as a means to reduce or eliminate an employee's indemnity (or lost wages) benefits.

Oftentimes, during the vocational rehabilitation process, the workers compensation insurance company will have the 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.

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. 

What Occurs After a Functional Capacity Evaluation is Completed?

Once the Functional Capacity Evaluation (FCE) is completed, the workers compensation insurance company may likely have an idea of the employee's physical capabilities.

The counselor can then research suitable jobs that fit within the FCE restrictions, and prepares a Labor Market Survey listing these positions.

Once these prospective jobs are identified, including a description of the physical requirements of each job, this Labor Market Survey is provided to the employee's physician for approval.

Once the doctor approves some or all of the jobs, notice of the jobs is provided to the employee or his attorney.

Once the jobs have been signed off on by the treating physician, the workers compensation insurer will reduce or terminate the employee's lost wages benefits.

The employee does not need to actually be offered that job, or to receive the job.  In fact, there are absolutely no guarantees that the employee will be able to get that new job.  

In fact, the workers compensation insurance company at this point does not care if the employee actually applies for or receives the new job, because job placement is not necessary for the insurance company to reduce or eliminate the employee's lost wage benefits.

All that is needed for the insurance company to reduce or eliminate the employee's lost wage benefits is for the doctor to signs off on just the employee's ability to potentially do a job that the vocational rehab counselor has found. Then the workers compensation insurer will reduce or terminate the employee's indemnity (or lost wages) benefits, by whatever amount that new job pays.  

How Does a Functional Capacity Evaluation Affect Vocational Rehabilitation In Louisiana Workers Compensation?

So, f the workers compensation insurance company can show that the employee can return to employment at actual jobs that are actually available, the the insurance company can legally reduce or terminate the employee's indemnity (or lost wages) benefits.  

Again, the employee does not need to actually be offered that job, or receive the job, or even apply for the job.  Vocational rehabilitation can be accomplished - and lost wage benefits eliminated - just by producing a Labor Market Survey to establish the injured employee's wage-earning capacity.

So how does the workers compensation insurance company prove job availability (and thus reduce or eliminate the employee's lost wage benefits)?

The Louisiana Supreme Court has specifically ruled that, in order to discharge its burden of job availability, the workers compensation insurance company must establish at a minimum:

    1. The existence of a suitable job within the claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic area;
    2. The amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and
    3. An actual position available for that particular job at the time that the claimant received notification of the job's existence.

And unfortunately, Louisiana courts have rejected the premise that applying for jobs and not being hired shows the jobs were not available.

So, the workers compensation insurance company must prove the existence of a suitable job within the employee's physical capabilities, and therefore must be able to demonstrate with proof exactly what the employee's physical capabilities are.

And this is exactly what a Functional Capacity Evaluation (FCE) does - it proves "evidence" of exactly what the employee's physical capabilities are, so that the workers compensation insurance company can reduce or eliminate the employee's lost wage benefits.

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