Posted on Mon, Aug 30, 2010 @ 10:54 AM
Question:
I am a practicing therapist in the Industrial Rehab field in Pennsylvania. We have been unsuccessful up til now in getting long term disability companies to pay for FCEs. It seems that if a doctor requests it, then the carrier states commercial insurance is responsible for payment. Most commercial insurances do not cover FCEs either. I am wondering if this is a situation unique to PA and if anyone has any information on who to contact with these disability carriers to try to get them to start paying for FCEs.
Answer:
OK, here we go...
FCEs for disability are a difficult, but growing area of practice. If you follow our monthly medico-legal webinar series you will have noticed that about half of the court cases we review are ERISA cases and the other half are ADA-EEOC cases. Given the string of settlements recently published in these two areas I see a growing opportunity for evaluators who can cultivate relationships with disability carriers. (read my recent article in Advance for Occupational Therapy Practitioners for more details).
The first step in finding a payment source for a disability eval is to identify the covering party. There are several options for proceeding:
1.) Ask the client (the patient) for a copy of his/her application for disability. (They should have filed paperwork by now if they are applying for payment of benefits). Within that paperwork you will find who wrote their policy and who is managing the "administrative file".
- If the client has not filed for benefits, but is a professional person he/she probably has a copy of a personal long term disability policy (they should have it!). In this case the policy should have contact information.
- If the insured is not a professional-level person, the policy may be a group policy. Again, ask the client to obtain a copy of the policy. I personally would not do the leg work at this point; many, many times the person thinks they are covered, but are not. Or they think they should be, but don't really know if they are. Let them do the leg work to obtain the details you need.
2.) Once you have identified the payment source you will begin a long road to discovering who is responsible and why they are responsible. The policy will have details about the exclusion term of the policy, the "same job" or "like job" terms of the policy, etc. It is at this point that you MAY discover whether the client is even entitled to be considering a disability claim.
3.) Now, if you get this far, be sure you have agreement for you to perform and get paid for your services. The underwriter may already have in place a team of professionals to perform these services. If they do, suggest that you be added to their team.
Sound like a long road? It is and is probably not worth pursuing for one client. You really want to build relationships with attorneys, first, and carriers, second, so your initial investment of time returns dividends over time.
Think of this as a 5 or 10 year engagement.
If you want to discuss this further call me at 1-800-443-7690 and/or tune in to our monthly free webinar.
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Posted on Wed, Aug 11, 2010 @ 10:16 AM
In case you do not already know, here at Matheson we host a free monthly medico-legal webinar on recent court rulings involving functional capacity evaluations or post-offer pre-employment tests that are in the domain of either the Americans with Disabilities Act (ADA) or the Employment Retirement Income Security Act (ERISA). (Note: Roy does present webinars every once in a while on other subjects as well, such as Understanding MET Testing in a Functional Capacity Evaluation and Using Methods-Time Measurement (MTM) within a Functional Capacity Evaluation. So, be sure to keep an eye out for those as well!)
These webinars are hosted by Roy Matheson, president of Roy Matheson and Associates (a.k.a. Matheson System). As Roy states during every webinar, he is not a clinician... He is someone who is passionate about these subjects - and has been for over 20 years - and who enjoys reading these court rulings and making these important rulings known to not only our students or graduates, but to any FCE or Post-Offer evaluator who would like to join in. At the end of every webinar, Roy answers questions that participants have - and they are usually very good ones!
So, if you are interested, be sure to check back at www.roymatheson.com/free-webinars for a link to register to upcoming webinars. Our FCE or Post-Offer Court Case webinars are held every first Thursday of the month at 2 p.m. EDT.
If you have missed any, there is also a list of archived webinars in which you can watch "on-demand" (for free of course).
Below is a "MediaRoll" of all of our past webinars, which are stored on Screencast for your more-convenient-and-faster viewing pleasure. Click on one to start viewing the webinar!
Note: if you do not have the latest version of Flash, you will not see the below MediaRoll.... sorry :(.... {This doesn't apply to the actual webinars, just the graphic below}
Thanks for your interest and continuing support! Hope to "see" you in one (or all!) of our upcoming webinars!
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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 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 Wed, Mar 24, 2010 @ 11:17 AM
Question:
What do you believe is the future for cases involving Short-Term or Long-Term disability, compared to what we're used to in Workers' Comp?
Answer:
This is an excellent, forward looking question.
Here's my thinking on the future of Functional Capacity Evaluation:
Keep in mind that we are talking about the FCE market in the United States. My comments would be different if we were talking about British Columbia. (The markets in Ontario, Canada and the United Kingdom have problems similar to the U.S. market, but are at a different phase of market development.)
Recent inclusion of functional capacity evaluation reports as evidence in short- and long-term disability cases foreshadows positive change to the practice of FCE in the United States.
Here's the background:
For the most part FCE's performed for workers compensation are not reviewed in an informed environment.
In the U.S., with very few exceptions, there is no legal review process that acts as a crucible of quality. Since the workers compensation system is a no-fault, non-tort system, very rarely do two informed attorneys sit across a table or stand before a labor board and examine expert FCE witnesses. In most cases the arbitrator of quality is the fee payer. This lack of informed review allows a very low standard of practice for functional capacity evaluations.
The important change is the use of short- and long-term disability cases in courts that have the power, under the Federal Rules of Evidence and the Federal Rules of Civil Procedure, to examine the details of an FCE. Under these rules a written report must be submitted for cross examination. And, when submitted for cross examination the evaluator must be able to present and defend his/her findings. The evaluator cannot rely on "the computer told me the result" or "the formula for determination is secret". And, given the findings in Indergard v. Georgia-Pacific, a job-calibrated functional capacity evaluation protocol will replace the standardized test battery approach to FCE. My belief is that the necessity for public testimony by functional capacity evaluators will dramatically change the FCE landscape.
The downside in the current FCE arena is the growth of FCE referral brokers and the emergence of superficial FCE training programs.
My observation of referral brokers is that they tend to reinforce the status of FCE as a commodity. A broker's expertise is the ability to market and sell. This takes advantage of the new evaluator who has not established a practice based on answering referral questions. Coupled with the broker's lack of quality differentiation, the result is a fast moving "mill" of evaluations churned out with little focus on validity, practicality and utility (see the Practice Hierarchy for definitions).
Safety is the foundation of the Practice Hierarchy espoused by
the APTA, APA and NIOSH and is the central focus of Matheson FCEs.
The second part of the downside formula is the annual emergence of superficial FCE training and "certification" programs. Every year we have people come through the five-day Matheson Functional Capacity Evaluation Certification Program with the intention of rolling out a copy of our training. Every year we have people stand outside our classrooms counting the number of people attending the program. I can feel them calculating what they perceive to be a great revenue stream. I can also see them figuring out how to set up the training in low cost venues with little or no transportation costs for equipment and computers. And, just like spring coming each year, these folks offer two or three days FCE "certification" courses within a few months of having attended our courses.
The result of these superficial training courses is that it has diluted the long-term quality of service.
One can participate in this type of training and easily set up a practice taking referrals from brokers. But, just like unqualified people buying too much house from home loan brokerage mills, eventually the market collapses.
I think the FCE market is in that state now.
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Posted on Sun, Mar 14, 2010 @ 12:00 PM
The following question was submitted via email by a Canadian participant in the Majeski v MetLife webinar (question is shortened here):
"The case I am working on is for a lawyer representing a 60 year old client who is trying to get long term disability benefits (for the past 8 years). He was a regional sales manager for a transportation company, essentially selling freight for specific industry.
There were only 3 working in the local office for this province, so he was also responsible for casual work (Dispatching and Yardman) for vacation relief, sick days. He lost eyesight in one eye and the other eye is also at risk due to diabetic retinopathy.
Precautionary medical restrictions to prevent hemorrhaging in his good eye include no heavy lifting, forward bending or exertional activities. Medical specialists suggest to limit reading to no more than 30 minutes continuously or up to only 4 hours per work day.
According to his insurance policy, the definition of a short-term disability is 3 months of inability to perform his generic occupation, not just his specific job. Long term is defined as 2 years of inability to perform this same specific job.
Does that mean that a job search would include any sale manager position? Does it mean that a job search would include all types of sales positions or just freight sales positions? The transferability to other sales manager occupations would be limited by his knowledge/education, so I would think he would have to stay in trucking - transportation field. and thereafter any occupation for which he is suitably qualified by experience, training, etc.
So does that mean if he could not do his customary job then he could do something like dispatch if provided with adapted equipment and computer software (Jaws) to limit the demands of reading even though this is below the skill level that he had advanced to with training on the job (work and courses)?
Any comments, or suggestions would be much appreciated. I am spinning my wheels on this one."
I wanted to share with you the responses I gave:
The first step is to consider whether you are the most appropriate person to be addressing the answers to these questions. My suggestion is that the gentlemen's attorney should retain an expert in disability law for the province in which your client resides.
Second, it sounds like you have a copy of the actual disability policy for this gentlemen's case. It is important to read the policy definition of the occupation. My guess is that his occupation was titled "Regional Sales Manager - Motor Carrier". His expertise seems to be in the area of freight regulations and pricing. I would take that as his occupation. My guess is that the physical demands related to the miscellaneous tasks he performed are most likely outside the definition of his occupation. (As a side note, it appears that the physical demands related to those side tasks are more strenuous than those related directly to his occupation.)
Third, the disability carrier would be smart to explore accommodations to the gentlemen's work situation. They may be able to return him to productive, gainful employment by providing an assortment of assistive devices and/or a modification to his work tasks.
Fourth, if this person was referred to you for an Functional Capacity Evaluation, the scope of that engagement would be reflected in the referral questions. Assuming that the referral was from the client's attorney, did the question infer some burden on you to determine the occupation versus the job? If this is not clear I would contact the lead attorney and get everyone on the same page.
Author:
Roy Matheson
www.roymatheson.com
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Posted on Fri, Mar 12, 2010 @ 08:08 AM
On March 4th Roy held a free webinar to share his analysis of the recent 7th Circuit Court of Appeals decision, Majeski vs. Metropolitan Life, and to have an open discussion with colleagues. Reviewing the case from the point-of-view of a "Thinking Evaluator", Roy discussed five lessons and suggestions for practice for functional capacity evaluators.
Audio and Slides are at the end of this post.
Case Background
This appeal concerns MetLife's decision to reject Majeski's claim for short-term disability benefits [6 No. 09-1930]. The MetLife Short Term Disability Plan is governed by the Employee Retirement Income Security Act (ERISA).
As the plan administrator MetLife determined that Majeski had failed to submit enough evidence to support her claim. Majeski filed suit, but the district court granted summary judgment against her.
Although MetLife's determination is entitled to deferential review, the court concludes that there are such significant gaps in the evidence supporting MetLife's decision that further proceeding are necessary.
A list of the abbreviated lessons is below. At the end of this post you will find the powerpoint slides to the presentation where there will be more detail. If you would like to listen to the audio and look at the presentation slides at the same time, please visit the Majeski v MetLife page on our website.
Lesson One
Take the time to read court cases and continually study to strengthen your skills!
Lesson Two
Understand the audience of your Functional Capacity Evaluation. [2 and 13 No. 09-1930]
Lesson Three
Have the proper references at hand. [2 and 13 No. 09-1930]
Lesson Four
Read the summary of the Court's opinion. [1 and 2 No. 09-1930]
Lesson Five
Find points interesting to a Functional Capacity Evaluator, such as Federal Rules of Evidence, Arbitrary-and-Capricious decisions [11 No. 09-1930], and Procedural reasonabless [7, 10, 11 No. 09-1930;12, 10 No. 08-1362; 11 No. 1:06-cv-01136; 1 No. 02-469].
Webinar Audio
Be sure to sign up for our next webinar, Leger v Tribune Company, taking place on Thursday April 1st at 2 pm EST (GMT -5).
If you have any questions about this blog article, feel free to post!
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Posted on Tue, Mar 02, 2010 @ 09:47 AM
In the recent 2010 Matheson workshop catalog I wrote,
The headline screamed, ‘EEOC Says No OT or PT in FCE’. Without even reading the article, I knew this headline would pave the way for change, despite its sensationalism and inaccuracy. At that very moment, I sensed an opportunity, as well as a major wake-up call, for the industry.
I went on to conclude with these words:
Indergard v. Georgia-Pacific serves as a wonderful learning tool for professional work evaluators who perform ‘functional capacity evaluation’ (FCE). This 9th Circuit Court of Appeals case illustrates how the federal legal system works in the United States – highlighting the weaknesses in the Americans With Disabilities Act, which is clearly flawed despite good intentions. And, it also surfaces the weaknesses in how the FCE is performed differently in various states.
The informal review of Indergard in this presentation, and in the paper below, are intended to address concerns shared by many experienced work evaluators. Included herein are lessons and suggestions that Thinking Evaluators may want to consider. Please keep in mind that the thoughts and reflections in this presentation and document are not intended to be legal advice.
*Please note that the below presentations will not show up in a Google Chrome internet browser. They will work in either Internet Explorer or Mozilla Firefox.
Below is the official court ruling:
Indergard v. Georgia-Pacific serves as a useful training tool for functional capacity evaluators. The evaluators who performed the job analysis and the FCE gave each of us a valuable gift – we thank them for what they endured to help us all learn. The comments in this paper should not be taken as criticism of those that were involved in the case.
- Roy Matheson
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