The Role of Functional Capacity Evaluations in Louisiana Workers Compensation

Vocational Rehabilitation and Functional Capacity Evaluations In Louisiana Workers Compensation

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

Vocational rehabilitation can be as simple as the employer accommodating the employee with a modified position, or it can theoretically be extensive enough to include the workers compensation insurance company paying for long-term re-training.

However, vocational rehabilitation is almost always used to the detriment of the employee, not 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.

In most instances where the employer cannot provide a modified job for the 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 are actually available and that are a match with the employee's skills and present physical ability (as per the doctor's written restrictions).

So, even though vocational rehabilitation is its own distinct benefit under Louisiana workers compensation, it is tied to the employee's receipt of medical treatment because the physical requirements of any proposed alternate employment need to be approved by the treating physician.

And usually, the best way to ascertain an employee's work capabilities is through a Functional Capacity Evaluation (FCE), a physical test administered by an occupational or physical therapist that helps to form the parameters of what type of work activity the employee can perform.

Functional Capacity Evaluations

Often, 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.

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 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 Functional Capacity Evaluation therapist then uses the measurements from these activities to produce an FCE 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. 

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 treating physician for approval.

Once the doctor approves some or all of the jobs, a 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, if the workers compensation insurance company can show that the employee can return to employment at actual jobs that are actually available, the insurance company can legally reduce or terminate the employee's indemnity (or lost wages) benefits.  

Again, the employee does not need actually to 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 notice 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 provides "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.

How Else Does a Functional Capacity Evaluation Impact an Injured Employee's Claim in Louisiana Workers Compensation?

Besides being used in the vocational rehabilitation process to terminate an injured employee's lost wage benefits by establishing the existence of suitable jobs within the employee's physical capabilities, a Functional Capacity Evaluation may be used in other purposes in an employee's workers compensation claim.

For example, Functional Capacity Evaluation results can have an impact on whether an injured employee has attained Maximum Medical Improvement.

Also, Functional Capacity Evaluation results can include impairment ratings, which can affect an injured worker's potential settlement value.

A Functional Capacity Evaluation can assist with addressing medical treatment issues, such as the need for additional medical treatment or rehabilitation.

Functional Capacity Evaluation results can also help the parties with return-to-work issues, such as whether an employee can return to work, or can return to light duty or full duty, or can return to work with or without work restriction or work modifications.

If an injured worker cannot return to his or her position, Functional Capacity Evaluation results can help determine whether the injured employee can return to an alternative position with different demands.

Credibility and Believability Issues 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 has no 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 Office of 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 shows 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 was 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 aspects of other issues in his or her workers compensation claim, such as impairment or disability.

And, an experienced workers compensation attorney will know when and how 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.

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