Posted on Fri, Jul 30, 2010 @ 01:58 PM
This posting is the third in a string about the August 5th medico-legal webinar that features a review of the Loma Linda University Medical Center settlement with the California State Department of Fair Employment and Housing and ten job applicants.
A response to an earlier post in this string questioned the relationship I see between Functional Capacity Evaluation (FCE) Testing and Post-Offer Pre-Employment Testing (POET). The query wondered how such tests could be similiar if they apply to the status of the client in not only two different phases of employment, but in two different legal systems (state workers' compensation versus the federal EEOC-AADA system). The writer indicated that post-offer seemed to reside in the early stages of employment, while FCE applied to a distant disability phase.
The link between how we practice in post-offer and how we practice in FCE lies in the fact that the individual being tested is (1) a candidate for a position of employment or (2) an incumbent to a position of employment. In Case 1, federal law protects the applicant from discrimination in employment testing. Case 2, even though residing in a state-level workers' compensation atmosphere, is not free from the weight of federal restrictions against discrimination in employment as the client is seen not as an applicant, but as an incumbent.
Both cases rest under the umbrella of federal protection for the client and federal responsibility for both the employer and the evaluator. In both cases, the EEOC administered AADA establishes the guidelines for employment testing.
Recent Federal Appeals Court cases make it clear that EEOC guidance for employment testing covers all applicants and incumbents. In Indergard v. Georgia-Pacific an incumbent wishing to return to her former position as a Napkin Folding Machine Operator challenged an FCE as an ADA covered medical legal evaluation. In James v. Goodyear Tire and Rubber the employer sought the right (affirmed by the court) to have an incumbent banbury operator undergo an FCE to determine his safe ability to fulfill the demands of his job. Indergard started as a workers' compensation case; James was an incumbent ADA case. In both cases the opinion of the court stressed the need for a valid FCE based on tests of the physical demands tied to the essential functions of the specific job to which the client was attached.
The lesson here for functional capacity evaluators is to pay attention to the attributes of each case that comes across the transum.
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Posted on Fri, Jul 23, 2010 @ 05:15 PM
My last post introduced the topic of our August 5th medico-legal webinar (see below to register). I described a settlement between Loma Linda University Medical Center and the California State Department of Fair Employment and Housing in which ten job applicants shared a $259,854 settlement.
The central issue in this case, and the issue driving the reform of Functional Capacity Evaluation and Post-Offer Employment Testing in the United States, is the all-important relationship between the essential functions and physical demands of the target job. Until recently, functional capacity evaluations administered in the workers' compensation arena did not take the time to establish the essential functions at the level required by the AADA. A narrative of the essential functions in a "job description" format served workers' compensation purposes. (The AADA does not mandate a format for an essential function list, but does in fact require a clear description of the essential functions.)
Now practice reform comes to both Post-Offer testing and functional capacity evaluation for return-to-work, same job same employer cases in the necessity to (1) prepare an accurate list of essential and marginal functions and (2) perform a job analysis to establish the physical demands of the essential functions and, finally, (3) the post-offer or functional capacity protocol performed against these demands must be a valid reflection of the demands.
Not building this chain has cost two employers more than $500,000 in the last 7 months.
A review of recent federal court cases provides prima facia evidence in a shift in the level of use and scrutiny of FCE at the federal level.
A brief history:
Indergard v. Georgia-Pacific established functional capacity evaluation as a medical evaluation under the terms of both the ADA and the AADA. The judges spent considerable time probing the Validity of the FCE protocol in question and found it to be invalid in relation to the physical demands of essential functions of the job.
Leger v. Chicago Tribune Company is an ERISA case heard at the federal court of appeals. The court took time to quote directly from an FCE administered by Joseph Rappa, PT. Justices commented on the physical effort statement and the reliability of client reports statement contained in the report. The reader is left with the impression that the court relied on the FCE to a greater extent than on the evidence offered by a physician in the case.
James v. Goodyear Tire and Rubber established the court's opinion that a valid FCE can be requested by an employer when legitimate reasons exist as to a worker's safe ability to perform the demands of his job. The court stressed the need for a valid test protocol.
It should be noted that the Federal Rules of Evidence and the Federal Rules of Civil Procedure govern the submission of Functional Capacity Evaluation reports at the federal level. My personal opinion is that the best level of preparation for this level of work is for the evaluator to be designated as a fully Certified Work Capacity Evaluator (CWCE). Many of today's quickie FCE courses will not prepare a therapist to be an evaluator at the level required in today's changed environment. Further, inflexible protocols and lack of clear essential functions will not serve FCEs done for return-to-work, same job, same employer evaluations.
When I began this blog string I said that it would be about preparing for the August 5th webinar on the LLUMC case. As I wait for documents from the State of California I will respond to a question about the link I see between the practice of post-offer testing and functional capacity evaluation testing.
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Loma Linda Settles Post-Offer Case for $260,000 - August 5, 2010, 2 p.m. EDT (GMT -5)
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Posted on Mon, Jul 19, 2010 @ 09:00
The term repetitive is often used in work restrictions. When most of us look at the term repetitive, we need to question what is the intended use of the word.
Repetitiveness means different things according to the context in which we must use it. In ergonomics, repetitiveness is defined as a frequency multiplier for physical demands. It is not something in itself although "common sense" (boy, do I hate that phrase) may tell us when something is repeated or repetitive. The NIOSH definition of "repetition" warns us as to using the term without careful understanding of the task.
I have made quite a career in Quebec, Canada, defining repetitive in courts...(sigh...). Certain guidelines in ergonomics would have you think that the repetitiveness factor can be taken out of its context and considered by itself, but be careful and read the whole guideline.
Frequency is one of the multipliers of many physical demands, and so are two others: Duration and Intensity. Unless we understand these three concepts, we have no idea what we are talking about. This is why it is difficult to define repetitiveness by itself: it never occurs in a vacuum.
So, what is repetitive? Is it a cycle time of less than one minute with the use of the hand at least 50% of the time, like many of us have heard? Read that definition and get to the core of it: it was defined by a researcher to establish the criteria under which certain jobs were to be included in the study of repetitive motion disorder. It was never intended to "define" repetitiveness for itself. What if the hands are not the body parts to which the limitation applies? What if it's the back? Are we going to use that same definition? Of course, not.
The above video is posted to Matheson's Ergonomic Evaluation YouTube channel.
You probably see the term repetitive in a medical or therapists note recommending limitations for a particular client. If you remember that the intent of a functional restriction is to protect the patient from further injury, then the term repetitive means: "occurs too often to be deemed safe and acceptable to the patient" (from the Sonia Paquette's dictionary, not yet even in press).
In ergonomics, there are 2 different concepts for which there are words in French, but I have not seen their translation in English yet. The 1st term is what I can better translate into "objective strain". The French term is: "contrainte". This represents the actual physical movements in terms of frequency, intensity, and duration. Its joined-at-the-hip sister term is probably better translated into "subjective strain" but does not quite give it justice. The French term is "astreinte". What it means is that the same physical movements requirements will pose a different strain of a person who executes them depending on a variety of factors such as height, fitness level, experience etc. . It usually intuitively makes sense to people that two different persons will experience a different strain even when performing the same exact activity (e.g. playing hockey as it is played in the NHL is definitely easier for Sydney Crosby than it is for me). That is what is captured by the term "astreinte". When we are looking at a "normal" population, the two terms are (mistakenly, in my opinion) often used interchangeably. However, as soon as we enter the realm of disability and "abnormal" people, we should take the subjective strain very seriously.
To make matters worse, it is not possible, at this point in the science, to predict the capacity of a person to perform repetitively very specific tasks unless we experiment it with him/her. There is a possibility to draw hypothetical inferences from the data gathered in careful analysis of a person's use of their body in different tasks, which are further analyzed according to their physical demands and the three multipliers.
I agree that it would be nice to have a standard definition of repetitive. If it was simple...! But it's not and that's why we need to understand it to better explain it - as a thinking evaluator.
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Posted on Mon, Jul 12, 2010 @ 10:58
The process of prepping for a medico-legal webinar may be of interest to you. On the first Thursday of every month we do a 90-minute session on the latest activity in the federal courts in the area of Functional Capacity Evaluation (FCE) or Post-Offer, Pre-Placement Testing (POET or PPT).
The case I have selected for the August 5th webinar is actually a state case. The State of California, through its Department of Fair Employment and Housing (DFEH) branch, has settled an employment disability administrative complaint against Loma Linda University Medical Center (LLUMC). The settlement agreement included a $259,854 disbursement to ten job applicants/claimants.
The root of this action stems from LLUMC's requirement that applicants for the following positions participate in a post-offer nerve conduction study: patient care assistant, referral assistant, phlebotomist, case manager, unit secretary, records representative, practitioner-resident and financial counselor.
The key issue in this case, as in the Indergard v. Georgia Pacific case in the federal courts, is the use of a test not directly tied to a physical demand of an essential function of the job(s) in question. This issue is driving reform of the FCE marketplace in the United States.
The steps I take to prepare for the 90-minute presentation include: (1) selecting a case, (2) obtaining a copy of the settlement agreement or the court's published opinion, (3) requesting supporting documents that will assist me to understand the issues, and (4) talking with the therapist or evaluator involved in the case.
Today I requested three documents from the State of California's Department of Fair Employment and Housing: LLUMC's pre-employment, post-offer physical exam policy, any job analyses of the positions that required the nerve conduction tests and LLUMC's nerve conduction test policy.
I also requested copies of job descriptions and job announcements for the positions that required nerve conduction studies.
Please join me, on August 5th at 2 p.m. EDT, for the webinar: Loma Linda Settles Post-Offer Case for $260,000.
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In my next post I will review the half-dozen federal cases that are shaping reform of the practice of Functional Capacity Evaluation in the United States.
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Posted on Wed, Jul 07, 2010 @ 03:32 PM
Do you subscribe to the monthly magazine Advanced for Occupational Therapy Practictioners? If so and you have the latest issue nearby (Vol. 26 • Issue 13), flip to page six. (If not, you'll be able to read the article via the link at the bottom of this post)
On page six you'll find the first installment in what will be a "new, regular column on industrial rehabilitation in occupational therapy" - and it's written by Roy!
In his first column for Advance for OT, Roy writes about the latest court cases affecting Functional Capacity Evaluation and how the courts are "clearing the way for FCEs in ADA cases":
A recent appeals court decision affects the practice of functional capacity evaluations (FCEs) in the United States. The ruling in James v. Goodyear Tire and Rubber Company clears the way for employers to request FCEs when legitimate business-necessity concerns, including the safety of an incumbent worker, exist.
If you have been a regular attendee of our free, monthly medico-legal webinars then this should sound familiar to you. (If you haven't yet attended a webinar, check out the previous link to register for upcoming webinars or to view our archives. You'll be glad you did!)
We're very excited and looking forward to seeing where this new adventure leads us. Check out the article below and be sure to check back for the next column!
"Court Clears Way for FCEs in ADA Cases" in Advance for Occupational Therapy Practitioners magazine
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Posted on Tue, Jun 29, 2010 @ 12:35 PM
The below post was written by James (Jim) Clouse, COTA, CWCE. Jim works at ProRehab in Evansville, IN and his professional interests include Work Conditioning, Functional Capacity Evaluations, Job Analysis/Job Description Preparation, Post-Offer/Pre-Placement Test Construction, and Workplace Injury Reduction.
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Thanks for asking me to be part of the Matheson Blog project! Aside from attending Matheson Training courses and reading "diamonds in the rough" articles, I learn the most from fellow Industrial Rehabilitation experts. We all have to be careful about how we interpret conclusions from authors, and discussing such things with my associates through RMA always leads to a deeper understanding.
One article I find myself re-reading and gleaning something new from again and again is from Dr. Leonard Matheson, and is actually part of the AMA chapter on FCE's in Disability Evaluation, 2nd edition (2003).
Several key points I have dwelt upon include:
- An excellent definition of "Functional" in Functional Capacity Evaluations
- A definition of "Capacity" that we should all be ready to paraphrase in a deposition or forensic setting
- A well-rounded explanation of "Evaluation" that summarizes all the key tools we use to make reliable predictions about an individual's performance
- A discussion of threats to reliability, that include:
Test Reactivity: a reminder that we are all dealing with people - not doughnuts. How we interact with an evaluee will have a direct impact on the results of the evaluation. (Maybe doughnuts do respond differently to a gentle human touch, but are generally considered inanimate.)
Physical Effort: Dr. Matheson lists 11 reasons why an evaluee might not provide high levels of physical effort during an FCE - 5 of which are psychological factors outside of the area of expertise of most evaluators. (Add two more "reasons" when you include "medically determined impairments" and "fraudulent attempts to circumvent the disability determination process" and you have a baker's dozen.)
- The importance of an "absence of expected relationship among related measures" (a $500 phrase!)
- The acknowledgement that almost all measures of effort can be volitionally defeated and that evaluators blind to evaluee "coaching" been shown to detect less than full effort with a 94% positive predictive value
- 5 different purposes for FCE's and the duration of testing required
- A comprehensive list of evaluation tools, and the Disability Model Level (what the tool assesses)
- A comprehensive list of Manual Material Handling tests
- A perspective on the future of Functional Capacity Evaluations
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Thanks Jim! For Jim's full bio, check out our Matheson Blog Team page.
To download the Functional Capacity Evaluation chapter in which Jim was referencing, click on the image below:
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Posted on Fri, Jun 25, 2010 @ 02:46 PM
Matheson instructors, Louise Lynch and Erica Galipeau from IHMS, have developed and now offer a functional capacity evaluation mentorship program. The purpose of the program is to support evaluators who desire to continue to improve their evaluation skills beyond those developed in the five-day FCE program and through traditional Matheson clinical support.
The following information comes from the Injury & Health Management Solutions (IHMS) website: www.ihmspt.com/mentorship
IHMS specializes in Functional Capacity Testing and Ergonomics using the Matheson System. Louise Lynch PT, CEES, CWCE is certified in both FCE and Ergonomics and has been teaching for Roy Matheson since 1995. Erica Galipeau PT, CEES, CWCE is also certified and has been teaching since 2003. We use the Matheson software for FCE and Ergonomics.
We provide mentoring for individuals who have had the initial RMA training in FCE. You can come to our clinic in beautiful Vermont, and work under our supervision while providing services to actual clients. The mentorship program is designed to meet your specific needs. We will design a training program specifically for you that allows you to observe an evaluation, perform evaluations, and write up a report that will not only allow you to be certain to receive certification, but also to meet your referral sources needs by answering the questions they pose to you in the first place.
The program is individualized to meet your specific needs. If you are interested, contact us directly from this website, or call the office and we will send you an application packet.
For more information, contact Louise or Erica via the IHMS website or call their office at 1-802-655-7575.
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Posted on Tue, Jun 22, 2010 @ 02:39 PM
When we work with people who have cognitive functional limitations, is there a good analog to the Physical Demands Characteristics (PDC) chart? The PDC chart is used to help bridge between the person's physical work capacity and the job's physical demands; are there analogous methods for cognitive work capacities and demands?
This is a very important problem. There are various strategies that can be used, depending on the issues that are presented. If this is a topic of interest, I can present additional ideas in the future. For today's entry, let me describe the use of the O*NET Abilities Domain, one of the six O*NET Occupational Descriptors for such a purpose. I have used this strategy several times for high-level professionals and executives who have experienced brain injuries.
The O*NET Abilities Domain is based on the Fleischman Job Analysis System (FJAS). Each of the abilities is represented in the FJAS by a behavior anchored rating scale (BARS). The BARS is a useful tool for work capacity evaluation because it presents observable behaviors that have been mathematically tied to a seven-point scale.
Depending on the demands of the occupation, certain ability factors are more important than others, which is obtained in the form of an Excel spreadsheet from the Details/Abilities section of O*NET for that occupation. An example is presented below for the top 10 (of 52) abilities for a client of mine who worked as a Management Analyst in the aeronautics and aerospace industry:
Importance is on a 100-point scale; in this example, Oral Comprehension is top-ranked. O*NET guides you to the most important abilities in the target occupation
Next, you need to design an evaluation and collect data from all available sources that illuminate those abilities. This begins with a careful history of the client's education and work, with the FJAS used to guide the discussion of the client's pre-injury work capacity in relation to the most important job demands. For example, Oral Comprehension is the "ability to listen to and understand information and ideas presented through spoken words and sentences". This ability is anchored at 5.6 on the FJAS 7-point BARS by "Understand a lecture on metaphysics", at 3.8 by "Understand instructions for a sport", and at 1.8 by "Understand a television commercial".
In addition, the FJAS BARS has very clear definitions for the ends of the BARS range. In this case, at the top end was "Requires understanding complex or detailed information that is presented orally, contains unusual words and phrases, and involves fine distinctions in meaning among words." With these anchors and this definition, I was able to conservatively estimate my client's pre-injury minimum at 5.5 to 6.0. His current ability was estimated between 4.0 and 4.5, representing a significant shortfall on which future rehab efforts should focus. Later discussion with a speech-language pathologist who evaluated my client indicated that he was at the low end of this range.
In the example above, I used subtests from the Employee Aptitude Survey, the Watson Glaser Critical Thinking Appraisal, and the Doll Chair Assembly Task situational assessment, and information from the neuropsychologist's test battery to develop a Cognitive Abilities Profile across his occupation's top ten ability demands.
This works best if the client has been fully employed and doing well in the occupation; without full employment, it is more difficult to estimate pre-injury capacity.
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Posted on Thu, Jun 17, 2010 @ 11:58
The following post was written by blog team member, Dr. Leonard N. Matheson, PhD. Leonard is a psychologist, author and inventor who was a pioneer in the field of occupational rehabilitation. He is the Research Scientist and Founding Director of EpicRehab. To see Dr. Matheson's full biography, please visit our Matheson Blog Team page.
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The METs column on the PDC chart (shown below) can be quite useful. It presents the range of typical energy expenditure that corresponds to one of the five physical demand characteristics levels.
I first recognized the need for a crosswalk from the United States Department of Labor's Physical Demand Characteristics system to METs when I was working in the cardiac rehab program at Rancho Los Amigos hospital in Downey California in 1973. I was responsible for the work rehabilitation segment of the program, helping people to return to work after a myocardial infarction. I used the newly published Handbook for Analyzing Jobs to do job analysis, but found that the method that was normally used to evaluate the work capacity of the person after a heart attack did not relate to the Department of Labor's system. I sought direction from two cardiologists, Harry Rice and Ron Selvester, as well as George Watson, a vocational evaluator at Rancho. The most scientific method to determine work capacity after a heart attack involved a treadmill cardiac stress test that was used to estimate the maximum safe work capacity, from which an estimate of workday work capacity could be developed.
The cardiologists were able to interpret the results of the stress test in terms of METs, a unit of energy expenditure that is based on oxygen consumption. MET means "metabolic equivalent of task", or is sometimes simply called "metabolic equivalent". One MET is the oxygen consumed by the individual at rest. Numerous studies have been undertaken to estimate MET levels of various job tasks, taken as a multiple of the amount of oxygen consumed by the individual at rest. We used these studies to identify tasks that could be placed in one of the five PDC levels.
Initially, we found that we could range the tasks across eight levels and developed hyphenated levels such as Light-Medium. While we found these to be useful in the cardiac rehab program, as Work Capacity Evaluation, Functional Capacity Evaluation, and Work Hardening were exported to other sites, the hyphenated levels created confusion. By the early 1980s, we had abandoned the hyphenated levels. Over the intervening years, as new studies of energy expenditure have been published, we made minor corrections to the MET range that corresponds to each PDC level. The most recent revision is presented below:
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Note from Roy Matheson:
MET Testing is an essential part of a Functional Capacity Evaluation.
We have noticed recently that there is a fair amount of confusion and uncertainty about how to properly perform a MET test. Please join me for a question and answer webinar to review the concept and correct procedure for MET testing.
Click Here To Register for the Matheson MET Testing Webinar!
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Posted on Fri, Jun 11, 2010 @ 12:02 PM
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