8-1-11; Why IL WC claims handlers and risk managers have to be cautious about FCE’s

We were asked why we don’t like FCE’S by a brilliant IL WC risk manager and wanted to provide some thoughts from our veteran defense attorneys. The biggest problem with traditional FCE’s is they have little scientific significance and are based primarily on subjective evaluation of the “effort” of the testee or injured worker. Very few current FCE providers have ramped up their testing to meet scientific standards.

Please understand lots of claimants are coached to or just figure out they should act like disabled people in FCE’s and they get “permanent restrictions” as a result of the testing. If that happens on a claim you are handling, you are now stuck with the questionable restrictions that are very hard to rebut in our system. Workers with such restrictions will try to use the permanent restrictions to block return to work and then start what our defense team calls the “wage differential dance.”

Unions across Illinois will rely on questionable FCE results to claim the employee can’t do essential job functions and can’t continue membership—they do that to maximize WC recovery for their union member, even though it almost certainly violates ADA. Then workers with the “right” FCE results quickly get low-paying jobs and want you to pay their differential for life.

We have seen Illinois hearing officers ask employers to pay $100K-500K and more in wage loss or total and permanent disability claims in reliance on invalid and/or questionable FCE’s. And surveillance results routinely indicate the FCE testing was a sham. We have seen folks who couldn’t lift the equivalent of a gallon of milk in an FCE, lift 50-100lbs. when they don’t know they are being “tested.”

Lots of claimant attorneys are now sending their clients for FCE’s because they know the claim becomes worth more money, even though the testing is silly.

We have a friend of our firm who has developed a higher-tech FCE, Darrell Schapmire. Schapmire?s work has not been limited to the development and promulgation of testing products and methods. He also published a book, edited by Cairns, titled Forensic Dissection of a Functional Capacity Evaluation. The book provides a blueprint for challenging traditional FCE processes in litigation. Cairns said that traditional FCE methods used for the past 30 to 35 years do not hold up to basic scientific scrutiny. “At least 25 studies published in the past two decades have shown the error rate of the standard grip test (in a typical FCE) is 30 percent or more,” Cairns said.

Traditional FCE methods in general can be skewed by the subjective self-limitation of the patient and subjective impressions of tester. “A con man can whine and groan and sweat and act like he is in pain, and if the tester likes him he?ll say he is doing the best he can,” Cairns said. Schapmire likened the traditional FCE testing methods to “1,000 learned scientists 4,000 years ago saying the earth was center of universe. They were in agreement with one another, but they were wrong.” Schapmire said there is not a single FCE in widespread use that is legally defensible. “It doesn?t matter if an expert gives the ?right? answer if he had no way of judging the validity of the subject?s effort,” Schapmire said.