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 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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