FCE (Functional Capacity Evaluations)

FCE (Functional Capacity Evaluations) I. INTRODUCTION FCEs are used often in South Carolina worker compensation claim s presentation. It has been this author s experience that far too much reliance is given to the FCE reports, though, actually the FCE procedure is varied in use, heavily reliant on subjective opinions of therapists (even though often stated self servingly to the contrary, and inconsistent in application. Typically, medical doctors order FCEs and utilize them in formulating their opinions about a patient s physical function level of abilities. Doctors often do so knowing almost nothing about determining the validity of (or lack of validity) the performance method of an FCE. FCEs are no more valid and reliable than are polygraph exams. FCE s have multiple (dozens) of ways to do them and no generally recognized and accepted consensus as to which method is reliable to justify being admitted into evidence. (At least polygraph exams all utilize the same machine.) Human nature, being what it is, generally seems to cause people to want to simplify information collection and if there is a perceived reliable method or test to use (even if it isn t), they will. Too often any so called FCE tests/evaluations are assumed to be reliable because of unquestioned repetitive use. The, We ve always done it that way so it must be reliable... is an assertion/assumption as well as an arbitrary conclusion not based on fact. The appropriate analysis of the validity and reliability of a FCE affects both sides in disputes/claims. This outline seeks to educate attorneys for either side, commissioners or doctors to question and determine the reliability of any FCE method, which is not done now. WHAT IS AN FCE? It is a medically optional examination (lacking any consensus generally recognizing and accepting a particular exam method as reliable) usually carried out by a physical therapist, to examine/evaluate an individual s capacity to physically function, usually as applied to the context of employment. There are many dozens of different methodologies used to perform an FCE. A limited sample list includes: Page 1 of 12

1. Acceptable Maximum Effort (AME) 15. Progressive Isoinertial Lifting Evaluation 2. Applied Rehabilitation Concepts (ARCON) (PILE) 3. Assess Ability 16. Polinsky Functional Capacity Assessment 4. Blankenship Functional Capacity Evaluation 17. Quantitative Functional Capacity Evaluation 5. BTE Work Simulator (QFCE) 6. California Functional Capacity Protocol (Cal-FCP) 18. Singer/New Concepts Vocational Evaluation 7. Dictionary of Occupational Titles - System (VES) August 17, 2009 Residual Functional Capacity (DOT-RFC) 19. Smith Physical Capacity Evaluation 8. EPIC Lift Capacity Test 20. Spinal Function Sort 9. ERGOS Work Simulator 21. Valpar Component Work Sample 10. ErgoScience Physical Work Performance 22. WEST Standard Evaluation Evaluation (PWPE) 23. WEST 4/4A 11. Isernhagen Functional Capacity Evaluation 24. WEST Tool Sort 12. Key Method Functional Capacity Assessment 25. Work Ability Mark III 13. Lido WorkSET 26. Work Box 14. MESA/System 2000 27. WorkHab Australia II. QUESTIONING ADMISSIBILITY OF AN FCE A. The Administrative Procedures Act states in S.C. Code Section 1-23-330 Evidentiary Matters in Contested Cases: In contested cases: (1) Irrelevant, immaterial or unduly repetitious evidence shall be excluded. Except in proceedings before the Industrial Commission the rules of evidence as applied in civil cases in the court of common pleas shall be followed. (emphasis added) Agencies shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form; B. S.C. Code Section 1-23-110 and 120 as well as 42-3-185 sets forth procedures and basis for the Commission s promulgation of regulations. C. Reg. 67-612 (Admission of Expert s Report as Evidence) outlines the basis for admissions of an asserted expert s report, presumably including reports by FCE therapists. A very important part of it though, allows any party to challenge the admissibility. Specifically, 67-612(I) states: By complying with this regulation, the parties do not waive any evidentiary objections to the introduction of a particular exhibit. Such objections may include, but are not limited to relevancy, materiality, qualification of the expert, timeliness, privilege, hearsay or authenticity as may relate to the document in controversy. Page 2 of 12

If an FCE report has been properly noticed under the regulation for submission in evidence, but a party wants to question admissibility, the party can and should do so. If there is a concern about a commissioner possibly overlooking problems as to the FCE report, options to help remedy that include: Immediately, upon proper notice of other party s intent to submit the FCE consider: 1. taking the de benne esse deposition of the FCE therapist; or 2. decide whether to make an exception to usual procedure and subpoena the therapist to the hearing to allow a commissioner to really weigh credibility of the therapist opinion, in person. Practice Note: Have staff procedures in place to promptly review APA formal notices (from opposing attorneys) checked for the need or lack of need to take a deposition or subpoena therapist to the hearing. Read R67-612 carefully. Is a postponement/adjournment motion needed to be filed? (See R67-613 Postponement or Adjournment of Scheduled Hearing.) D. Standard for determining Admissibility of Scientific Evidence in South Carolina State v. Council, 335 S.C. 1, 515 S.E.2nd 508 (1999) reviewed appropriateness of the admissibility of certain DNA test results. The opinion reviewed the legal analysis required. Portions of the opinion are repeated here:... Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the court held scientific evidence only became reliable, and therefore admissible, when it had attained the general acceptance of the scientific community as a whole. However, this Court has never adopted that standard. Instead, prior to 1990, the standard for admitting scientific evidence in south Carolina was the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom. State v. Jones, 273 S.C. 723, 731, 259 S.E.2d 120, 124 (1979). This standard is more liberal than the Frye standard. In considering the admissibility of scientific evidence under the Jones standard, the Court looks at several factors, including: (1) the publications and peer review of the technique; (2) prior application of the method to the Jones Factors type of evidence involved in the case; (3) the quality control procedures used for determining to ensure reliability; and (4) the consistency of the method with recognized admissibility scientific laws and procedures. State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990). This type of evidence is also subject to attack for relevancy and prejudice. Ford, supra. Page 3 of 12

In 1990, South Carolina adopted Rule 24, SCRCrimP, which is identical to Rule 702 of the Federal Rules of Evidence (FRE). In 1995, South Carolina replaced Rule 24 with Rule 702, SCRE. [fn15] This rule is identical to its predecessor, Rule 24, SCRCrimP, and Rule 720, FRE. In 1993, the United States Supreme Court found the Frye test had been superseded by the FRE and adopted new parameters for admissibility under Rule 702 and 703. Daubert v. Merrill Dow Pharmaceutical, Inc., supra. Before scientific evidence is admitted, the trial judge must determine the evidence is relevant, reliable and helpful to the jury. The Court suggested four factors to consider in deciding reliability in scientific evidence cases: (1) scientific methodology; (2) peer review; (3) consideration of general acceptance; and (4) the rate of error of a particular technique. Id. The Court states if the evidence is reliable and relevant, the judge should determine if the probative value of the evidence is outweighed by its prejudicial effect. Id. The Court recently held the standard of review of a lower court s decision to admit or exclude evidence under Daubert is an abuse of discretion. General Elec. Co. V. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). While this Court does not adopt Daubert, we find the proper analysis for determining admissibility of scientific evidence is now under the SCRE. When admitting scientific evidence under Rule 702, SCRE, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable. The trial judge should apply the Jones factors to determine reliability. Further, if the evidence is admissible under Rule 702, SCRE, the trial judge should determine if its probative value is outweighed by its prejudicial effect. (emphasis added) Rule 403, SCRE. Once the evidence is admitted under these standards the jury may give it such weight as it deems appropriate. We conclude the trial judge was well within his discretion in finding the results of the mtdna analysis admissible under the Jones factors and Rule 702, SCRE. State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689, cert. denied, 519 U.S. 972, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996) (the admission of expert testimony is within the discretion of the trial court); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981) (the admissibility of evidence is within the trial court s discretion). This evidence assists the jury in determining whether appellant committed the crimes because it provides an objective confirmation of the subjective microscopial comparison performed on the hairs. Standard for science evid admissibility Page 4 of 12

Mitochondrial DNA analysis has been subjected to peer review (emphasis added) and many articles have been published about this technology. The F.B.I. laboratory validated the process and determined its rate of error (emphasis added). Its underlying science has been generally accepted in the scientific community (emphasis added). Further, while forensic application of mtdna analysis is fairly new, the technology has been used in other contexts for several years. E. Polygraph Results Admissibility (as quoted from State v. Council opinion) This Court has consistently held the results of polygraph examinations are generally not admissible because the reliability of the tests is questionable. [fn20] State v. Wright, 322 S.C. 253, 471 S.E.2d 700 (1996); State v. Copeland, 278 S.C. 572, 300 S.E.2d 63 (1983). Further, this Court has declined to admit in mitigation the results of a polygraph exam offered during the penalty phase of a trial. [fn21] Copeland, supra. The United States Supreme Court has recently found that a per se rule against the admission of polygraph evidence does not violate a defendant s right to present relevant evidence in his defense as guaranteed by the U.S. Constitution. United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In Scheffer, the Court recognized, there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques. Scheffer, 118 S.Ct. at 1265. (emphasis added) In our opinion, the trial judge did not abuse his discretion in refusing to admit the polygraph evidence. State v. Von Dohlen, supra (admission of expert testimony is within the discretion of the trial judge). However, in light of the adoption of the SCRE, admissibility of this type of scientific evidence should be analyzed under Rules 702 and 403, SCRE and the Jones factors. Relevant footnotes of the opinion, referenced below [fn15] Rule 702, SCRE, states: If the scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified an expert by knowledge, skill, experience, Page 5 of 12

training, or education, may testify thereto in the form of an opinion or otherwise. [fn22] Other jurisdictions have continued to find polygraph evidence inadmissible after Daubert. See State v. Porter, 668 A.2d 725 (Conn.Ct.App. 1995) (even in light of Daubert, polygraph evidence is inadmissible due to questionable accuracy); State v. Beard, 461 S.E.2d 486 (W.Va. 1995) (despite the fact that the court had previously adopted Daubert, the court found polygraph evidence inadmissible). II. DEALING WITH FCE NUTS AND BOLTS MECHANICS A. WHO PERFORMS AN FCE? (In a Worker Compensation case) It is usually a physical therapist requested by an authorized treating physician with authorization affirmed by the employer-carrier. (Practice note: Be on the lookout for sweetheart referrals back and forth between referring doctor and therapist. How? By paying attention to idle chitchat of doctors and therapists, and checking medical corporate ownership interests or property ownership. Take note how frequently and/or consistently a particular doctor refers to a particular therapist.) B. VIDEO RECORD THE FCE TO ALLOW FOR REVIEW OF ACCURACY? To allow review by the commissioner, of any subjective statements reported by a therapist about the worker, otherwise left to only swearing match of the therapist and the worker. (Example: therapist states worker exaggerated pain movement or that the worker was self-limiting his/her motion in the exam.) To verify what in fact occurred, everyone can go to the video. Practice Note: It can cut both ways, in that, if the worker appears, to the commissioner, as not really trying to participate in the FCE, that may also be observed on video. Most video recordings keep everyone honest and prevent misinterpretations. That applies to therapists and workers claiming benefits. C. TYPICAL OBJECTIONS MADE AGAINST CLAIMANT VIDEO- RECORDING OF THE FCE AND THE APPROPRIATE RESPONSES TO CONSIDER Objection #1: Video-recording interferes with the FCE. Page 6 of 12

Response: There is nothing under law or generally recognized and accepted medical protocol to support this assertion. Some therapists just don t like it and choose to make this unsupported conclusion in order to try and get their own way by jeopardizing benefits. There is absolutely no consensus of medical protocol that justifies the prohibiting of videorecording an FCE or that the video-recording interferes with carrying out n FCE. Practice note: One therapist, who happens to use the Blankenship methodology for an FCE, until recently handed out pre-fce information which informed the patient, scheduled for the FCE, that the exam might be video recorded and why. Specifically, an excerpt from that therapist s handout stated: How Will the FCE be Recorded? The FCE is recorded on a computer and several computerized tests are used to identify problems and document your safe work ability. Photographs and videotape may be used so your doctor, employer, and insurer may also see your work ability. Your FCE results are summarized in a short written report, which may also include the computer printouts, photographs and videotape. If you want a copy of your FCE report, you may request it from the Workers Compensation Insurance Carrier, who usually pays for the FCE. That therapist stopped using that particular handout when the claimant attorney chose to video the FCE. The embarrassed therapist then began using revised handouts without the above excerpt. (A copy of the full page handout is in the addendum to this.) Objection #2: No one else records FCE s. Response: This is not a justification or explanation for objection, but merely an observation and little more. Practical note: Point out that possibly you just aren t aware of a generally recognized and accepted medical protocol, law, or regulation that prohibits video-recording, but if you missed something, you need to know what they believe you are missing. To date, I ve never received a response except an attempt made to change the subject, rather than identifying the medical protocol, law or regulation. Objection #3: Video-recording would violate HIPPA rules. Response: No it wouldn t. Usually, a therapist, when asked to state specifically the HIPPA rule referred to, can t do so and, typically, will then change the subject. Page 7 of 12

Practical note: Often therapists will try to argue that allowing claimant video-recording would or might violate the privacy of other patients in the therapy room and therefore, be a violation of HIPPA. The therapist usually asserts that other patients, also at the facility, need to consent to the video-reocrding of the claimant. If that point is valid, the therapist then also needs to get the consent of the claimant to permit others to observe the claimant going through his FCE. Point this out to the therapist and tell the therapist the facility needs to be cleared of others during the FCE because of privacy concerns of your client. Most therapy facilities are open areas with multiple patients simultaneously receiving therapy or FCE s, in full view of each other. If privacy is that important, it demands clearing the facility for one patient at a time or adding a lot of walls that are not usually in these facilities. Objection #4: No law allows you to record FCEs. Response: A law creates limits, similar to a fence, guiding/limiting conduct. No law or regulation prohibits video-recording of FCEs and any law passed to do so would have to be based in part, on generally recognized and accepted medical protocol... which currently doesn t exist. Even if such a law is sought, how would claimant be allowed to protect himself from a biased therapist or faulty method used? D. WHAT IF THE THERAPIST DOESN T CANCEL THE FCE OR ACKNOWLEDGE CONSENT FOR VIDEO-RECORDING? Never rely on only oral verification that the FCE is cancelled or postponed. Go through the motions to attend so you aren t accused of refusing the FCE. Show up for the FCE and confirm that the therapist (not the claimant) refuses to perform the FCE, or prepare for the possibility to be falsely accused of refusing medical. Deal with therapist objections politely and clearly. (See attached sample letters to therapist, pre FCE date.) Take the deposition of the therapist? To verify therapist s knowledge or lack of it as to FCEs. To verify under oath how and what was done, the particular system used to do the FCE. E. QUESTIONS FOR THE EXAM THERAPIST Verify therapist s agreement with following points. If therapist disagrees, pin down their basis for doing so.) Methods: Page 8 of 12

1. That there are many different methods to use (dozens) to perform an FCE. 2. That a different method used would probably affect the FCE results. 3. That the therapist is trained in only one method chosen by the therapist s employer. 4. That none of the therapist s school degrees/academic training included how to perform an FCE. 5. That the FCE method used by the therapist is not generally recognized and accepted in the medical community as reliable (That the therapist s company approves it and recognizes it, isn t enough.) 6. That the therapist s employer chose the FCE method used and provided the training. 7. How (specifically) does the method that the therapist used, differ from other methods and why use it over other methods? 8. What Court has found the FCE method used, by the therapist, admissible in evidence? (and why?) Validity: 1. What are the different types of validity analyses used in any FCE? (There are four (4)) Content validity Face validity Criterion-related validity Construct validity 2. How is one validity type different from another? 3. Which validity analysis was applied in the FCE method used? (For extra information, see Validity of Work-Related Assessments,1998 article (54 pgs) by E. Innes and L. Straker; compares and contrasts validity methodology of 28 FCE methods.) F. SELF JUSTIFICATION OF AN FCE OR WE SAID IT IS A GOOD METHOD, SO IT IS. Look carefully at any reference, in an FCE report, asserting peer review approval or that studies validate results/methods. Those referenced studies or methods of validation are usually self-serving, often by so called peers who own or have an interest in the particular method used, as well as, profits received in doing so. Verify who the peer reviewers really are and the interest the peers have in writing any articles to support the particular method. One often used FCE method, in South Carolina, references a so called peer review article validating Page 9 of 12

the applied method. It fails to note that article s author/ peer owns the FCE method used in the report and is paid profits the more it is used. G. SELF LIMITING - VERIFYING THE MEANING (OR LACK OF IT) Therapists, when pressed, will almost always verify that: There is no method to validly measure and determine why a patient does not fully complete an FCE method task. Verify that the term, self-limiting, indicates only that an FCE patient did not complete or fully complete a task for any or none of the following reasons: actual pain caused by the motion; fear of anticipated pain that might be caused by the task; malingering heart condition concerns For more review, read: Detecting Sincerity of Effort: A Summary of Methods and Approaches, (1998) by Deborah E. Lechner, Professor at Univ. of Alabama, President and Founder (promoter) of ErgoScience Method. Sam F. Bradbury, President and Founder, Quality Essential Health Systems, Inc./Co-director of WorkHab FCE Method. Laurence A. Bradley, Professor of Medicine, Univ. of Alabama. The authors note in the article: We argue that our credibility is enhanced when we use appropriate terminology to address the issue of sincerity of effort and to differentiate it from the biobehavioral aspects of delayed recovery. The term validity, for example, often is used to address sincerity of effort. Test results are described as valid or invalid based on the results of a series of tests that are alleged to test sincerity of effort. Use of the term validity to describe sincerity of effort is an inappropriate application of a scientific term. Validity refers to the extent to which a measure can be used to make an inference or judgment. Research establishes evidence in support of validity, which does not change with the patient s level of effort. If patients do not give a full effort during physical evaluations, then the test results represent what they were willing to do. Because patients cannot be forced to expend more effort than they are willing to expend, validity is unaffected. There is no evidence reported in the peer-reviewed literature that any of the tests Page 10 of 12

designed to provide a validity profile of the patient are valid in the scientific sense. Other terms that may cloud our understanding of the biobehavioral factors affecting recovery include symptom magnification and exaggerated pain behavior. These terms are frequently used in clinical practice, in standardized evaluations, and in the literature to identify patients who are thought to be exaggerating the severity of their medical conditions. The use of this terminology is not theoretically sound. By definition, a symptom is a sensation experienced by the patient. There is no laboratory test or imaging technique that can measure the patient s true versus reported experience of sensation. The terms magnification and exaggeration imply that we can measure true sensations and compare these measurements with patient reports. Thus, by definition, symptom magnification and exaggerated pain behavior cannot be measured. Use of these terms, therefore, should be avoided, as they add little information that leads to improved treatment for the patient with delayed recovery. (emphasis added) [Lechner DE, Bradbury SF, Bradley LA. Detecting sincerity of effort: a summary of methods and approaches. Phys Ther. 1998; 78:867-888.] III. PROTECTING THE WORKER FROM A BIASED OR INATTENTIVE DOCTOR When sure of, or concerned about, a particular, carrier chosen doctor, consider use of S.C. Code Section 42-15-80, which allows the worker to have another doctor present during carrier chosen doctor appointments. The observing doctor does just that only, and may not interfere with the exam. Practice Note: You should always consider sending a courtesy note to the carrier doctor that another doctor will be at the appointment. Advance notice, though not required by law, allows for the carrier doctor to decide whether or not to go forward with the appointment. Based on this author s experiences, most carrier doctors choose to cancel the appointment and not be observed by another doctor. Obviously, none of this procedure is needed if the carrier chosen doctor is not considered by the claimant to be biased or inattentive. Be sure to have the observing doctor show up for the appointment, if you don t have written confirmation of the cancellation. Documentation helps to avoid the worker being accused of refusing medical to justify Defendants terminating benefits. Page 11 of 12

Often you can find a general practitioner, retired or semi-retired who is willing to go to the appointment for a modest fee, only to sit and observe. (See also addendum for sample courtesy note to the carrier doctor) Use of the 2007 Sanctions Statute to Stop Insurance Carrier Abuse (42-3-175 S.C. Code) This statute is unexpectedly strong for dealing with abusive carriers and adjusters. It provides that if a carrier/adjuster fails to provide benefits as ordered, the worker or his/her attorney can formally request the following: enforcement of benefits ordered; (i.e. medical, TT, etc.) fine the carrier and/or the adjuster attorney fee and expense to worker s attorney for filing; investigating the carrier, by Department of Insurance, for pattern of conduct. Practice Note: Adjusters can t now hide behind a carrier. The adjuster may be specifically listed in the motion for sanctions. Adjusters aren t accustomed to seeing their name prominently stated in sanctions filings. If you send the draft of the motion, to defense counsel, including a short deadline notice that it will be filed if the dispute is not resolved, usually, you will get the adjuster s attention.. Send it by e-mail so the defense attorney can more easily forward it to the adjuster. Always file it, if your deadline passes. (The code section text and boiler plate motion are attached in the Addendum.) IV. CAREFUL REVIEW OF R67-215 MOTIONS Far too often, motions are not filed in compliance with the requirements of the Commission regulation. In drafting a motion be sure to provide affidavits in support of the motion or run the risk of dismissal of the motion. Affidavits are required, if the motion involves asserted facts that are not already part of the Commission s file. Not all types of motions need affidavits but look closely at any motion you draft or defend against to verify the need of all affidavits. (i.e. See attached addendum defense motion (re: video of an FCE) and the responsive motion requesting dismissal for total non-compliance with the regulation.) If affidavits weren t required, given that hearings are rarely held on motions, false and misleading facts could be asserted in a motion with impunity for any desire prejudicial effect. (Ethics violations for misleading a tribunal are a collateral issue not dealt with here.) Page 12 of 12