In recent months, I have participated in multiple conversations regarding Functional Capacity Evaluations (FCEs) and how the results have weakened the defense’s case. Several defense attorneys have suggested that a FCE generally causes further problems in litigation, and they prefer to work with just the physical therapy notes and reports. Often, they feel the patient performs at a lower level during the FCE than they do in therapy, and yet the test comes out valid. As a seasoned physical therapist and a veteran of over 500 FCEs, I concur with this observation. In my capacity as an expert witness, I have seen first hand how a subpar FCE has labeled a capable human being, who can cast a fishing pole and launch his boat, to total and permanent disability and entitled to a lifelong pension. However, a quality FCE can be beneficial to all parties. So, what to look for when finding a quality FCE and when should a client be referred for a FCE?
First, a FCE is needed to determine a person’s ability to work safely, however, all WC injuries do not need to be referred for a FCE. I agree with the notion that the physical therapist’s notes throughout therapy and work conditioning are generally sufficient to determine a person’s work ability. However, there are several additional factors to consider. The longer a person has been off work, the more likely they will need a FCE to determine function, due to “deconditioning syndrome.” Deconditioning syndrome according to Mayer and Gatchel in Functional Restoration For Spinal Disorders” represents the loss of physical capacity attendant upon disuse that leads to many manifestations of chronic disability.” In essence, the longer the time of disability and the more extensive the surgical procedure, the greater the postoperative physical capacity deficits that need to be addressed as part of the recovery process. Thereby, a therapist is no longer simply addressing deficits in a knee, for example, but dealing with multiple issues from disuse. If a therapist has a prescription for a knee, documentation will be mainly on the knee, and will not address all of the physical deficits needed for work duty.
Also, when the person has highly specific demands or “Heavy” job demands, then the ability for them to work safely may be difficult to determine with therapy notes alone. A legally, sufficient FCE should have scientifically researched components in place, such as the NIOSH Isometric Lift Testing, to help determine a person’s lifting capacity prior to actually lifting. This information enables, a therapist to predict how hard he or she can push a person with the collected FCE evidence, which is something a therapist may not be able to do through regular therapy treatments. Through detailed, computerized testing of strength and lifting capacity, the scientific FCE protocol can predict how much a patient should be able to lift dynamically and not be injured. In traditional therapy, the therapist is guessing at lifting ability or basing it on the patient’s subjective input.
Another reason a person should get a FCE is to determine malingering and sub-maximal effort. Keep in mind conscious sub-maximal effort and the presences of non-organic signs are two different presentations. I have witnessed people failing to provide maximum effort but not inventing or exaggerating symptoms. On the other hand, I have seen fabricated symptoms, in conjunction with the patient putting forth good effort. It may depend on the way they were coached for the test or how the person feels they should behave during the test. Sub-maximal effort can be measured scientifically and may be conscious but could be subconscious due to pain, fear, or anxiety. Malingering, symptom exaggeration, or non-organic signs require anatomical knowledge, experience and are more of an art form to detect, but can be measured objectively. When both elements are present, it makes for an interesting test and outcome. A FCE that determines sub-maximal effort needs to be based on scientific evidence and not subjective reports or observations alone. A coached patient that acts disabled is no match for the experienced therapist that has compiled scientific evidence to support her results that conscious, sub-maximal effort was given.
Finally, along with medical records, testimony, disability ratings, and the addition of impairment ratings, a scientific FCE is useful information at the WC Commission. When the 6th edition impairment ratings under the AMA Guidelines were first introduced the lecture circuit preached, “Impairment does not equal disability” and therefore an impairment rating alone will not determine a petitioner’s disability. Disability is a physical impairment that limits life functions and work capacity. A quality FCE is the best way to determine the exact disabilities and capacity that a person can perform for work duty, along with validity of effort to reinforce the other medical evidence.
When looking for a useful FCE, one should ask the following questions:
- How many validity criteria does your FCE present? I have seen FCEs with less than 10 FCE validity criteria while others have 60-100 validity criteria. Which drug would you trust more, consistency over 100 patient trials or 1000?
- Is your FCE supported by scientific evidence and has the report (and therapist) held up in legal proceedings? Computer based FCEs that are calibrated regularly help support the scientific evidence.
- How experienced is your therapist? How many tests has he or she performed? Is the tester a physical or occupational therapist, or someone with a different degree that may not be fully qualified to perform the exam? I have seen therapists who took a weekend course and are thrown into the fire and some therapists may only perform a couple tests a year. It takes time and practice to become confident with FCEs. An experienced therapist will be able to detect someone who is coached to be disabled.
- Is the therapist performing the test the treating provider? In my opinion the same company or even the same clinic should not cause an issue, but once a therapeutic relationship exists, a bias exists.
- Does the report make a clear judgment on the person’s work ability compared to the worker’s actual job demands? Do not pay for general functional descriptions that are left open for interpretation.
- The Workers Compensation community becomes frustrated when a physician determines work ability or MMI based on an invalid FCE. Does an invalid FCE contain a clear statement similar to, “due to the patient’s sub-maximal effort on today’s test, the test results are not a true indicator of the patient’s current work ability.” The patient can perform at higher physical demand levels that are represented in today’s test results.”
If your FCE reports are showing that the patient is working significantly at a lower level than the work conditioning or physical therapy records, there is something wrong with your tester. The search for an experienced FCE tester and company that provides a strong FCE is worth the effort. A faulty or legally defensive FCE report should never be the sole determining factor in disability, but the results should help decide a fair settlement for the defendant or the plaintiff.