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.
Register Now for this Webinar:
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 12, 2010 @ 10:58 AM
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, Feb 24, 2010 @ 01:48 PM
The cornerstone of an informed hiring program is to ensure that an applicant's physical abilities match the demands of the job. For any organization that places applicants in jobs with high levels of physical exertion or dexterity, or jobs with a history of injuries, Post-Offer, Pre-Placement Testing and Job Analysis (PPT) is a crucial step in avoiding injury and its associated costs.
Health professionals who start Post-Offer testing programs often do so because of their background in occupational therapy or physical therapy. They quickly learn that their skill set must expand to include an awareness of EEOC practice guidelines, knowledge of how to write a defendable post-offer test and how to track disparate impact statistics. See: Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002)
Post-Offer testing programs provide clinicians with the opportunity to make direct contact with employers, rather than waiting for referrals from doctors or brokers. The key to launching a successful clinic-based PPT program is to start with a well-established package that includes training, software and support.
Evaluators need to comprehensively analyze jobs to create individualized Essential Function Task statements, and to develop and administer pre-placement testing protocols based on the physical demands associated with the essential functions of each job.
Post-Offer Testing and Job Analysis training >>
Post-Offer Testing and Job Analysis software >>
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