12-8-14; PART I Rising Min. Wage Bad for Jobs--Good for Your IL WC Claims; Brad Smith, JD Reviews Important ADA Win for Business; WCLA CLE Review by John Karis and much more

Synopsis: Higher Minimum Wage is Bad for Jobs but Great for Claims Adjusting in IL Workers’ Compensation.

Editor’s comment: We hate to see our State keep pushing the button on the very populist theory of raising the minimum wage. Our former Governor basically ran almost his entire campaign on the concept because the people who were in his camp love the idea of getting raises without having to do anything other than vote for them. Our main problem with a high minimum wage is the concept is a jobs-buster. Real economic growth would naturally increase the demand for labor-increasing wages without costing jobs. Perhaps the best example of this is from Williston, North Dakota where their vibrant and growing economy is creating a strong demand for labor. Crew-level restaurant employees are already making $11 to $15 an hour and big box retailers are offering work starting at $17 an hour. Even without a government mandate, wages will be higher in any region where economic growth increases the demand for labor.

From the workers’ compensation perspective in the State of Illinois, higher minimum wages are a counterpoint and may cut the popularity of the worst of Illinois WC benefits—wage loss differential benefits. In order to qualify for Section 8(d)(1) differential benefits, Claimant must prove two things:

ü  a partial incapacity which prevents the pursuit of his/her “usual and customary line of employment,” and

ü  an impairment of earnings.

The wage differential was to be paid for the duration of disability which had previously interpreted to mean “for life” – not “work life,” even if after an award was rendered, the employee changed jobs resulting in a change of wages. This aspect of the ruling made the values on a wage loss claim very high. However, for claims starting in 2011 and after, the Amendments to the IL WC Act now mandate wage differential benefits would terminate when the employee reaches the age of 67 or five (5) years after the award becomes final, whichever is later.

Under the IL WC Act, Petitioner cannot recover for both section 8(d)(1) wage differential and a specific loss of use for a man as a whole under section 8(e) or section 8(d)(2). In a wage loss differential claim, the injured worker is entitled to 2/3 of the difference between what they would be making now based on the job they had at the time of the injury and what they are able to make in alternative work at present. From our perspective, the IWCC doesn’t want and won’t provide total and permanent disability benefits if the doctors and medical care providers agree the injured worker can locate some sort of alternative work after recovering from their injury. And the Americans With Disabilities Act also federally mandates reasonable accommodation in the hiring process, so injured workers have to be provided job modifications and other adaptations to allow them to return to functionality.

So is the current and coming math on traditional IL WC wage loss calculations. We are assuming the worker would be making $800 a week in the job they had prior to injury. They become injured and don’t recover fully and the only work they can now locate is an entry-level job at minimum wage:

·         At the current federal minimum wage of $7.25 per hour times 40, the worker would be making $290.00 per week. Wage differential would be calculated as $800 minus $290 times 2/3 or $340 a week.

·         At the current Illinois minimum wage of $8.25 per hour times 40, the worker would be making $330.00 per week. Wage diff would be $800 minus $330 times 2/3 or $313.33 per week.

·         At the minimum wage of $9 passed by the IL Senate that is to start in July 2015, wage diff would be $800 minus $360 times 2/3 would be $293.33 per week.

·         At the Chicago minimum wage, the City-mandated raises are $10.00 per hour by July 1, 2015, then $11 by 2017, and $13 by 2019. Wage diff for jobs in Chicago will soon be calculated $800 minus $400 times 2/3 or $266.67 a week. Those values are sure to be getting lower and lower, as the minimum wage goes up and up.

·         In calculating the minimum wage at the future City of Chicago rate of $13 per hour in 2019, the math is $800 less $520 times 2/3 or $186.67. This means such a wage loss claim would provide an annual benefit of only $9,706.84 a year and more traditional permanency values for serious work injuries may supplant wage loss.

We feel these coming numbers can be used right now to start to recalculate reserves and settlements on any wage loss differential claim. We are happy to assist risk managers and claims handlers in doing so.

We also have a great claim strategy on how to completely avoid or end wage loss differential claims for construction and other industries. If you have interest in learning how to cut reserves and save millions by completely avoiding wage loss claims, send a reply.

If you have questions and concerns about how this will impact your current IL WC claims, send a reply and we will get right back to you.

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Synopsis: Document! Document! Document Performance and Absences! In an Employment Law opinion as it relates to the Americans With Disabilities Act (“ADA”), the Seventh Circuit affirmed entry of summary judgment on a diligent employer’s behalf. Analysis by Bradley J. Smith, J.D.

Editor's Comment: In Taylor-Novotny v. Health Alliance Medical Plans, Inc., the Seventh Circuit rejected the employee’s claims of 1) failure to accommodate multiple sclerosis under the ADA; 2) discrimination and retaliation based on a disability; 3) interference with Family Medical Leave Act (“FMLA”) rights; and 4) discrimination based on race. The Court reasoned the employee could not succeed on her ADA claims because she failed to establish she was a “qualified individual” under the ADA.  The Court further determined the employee failed to meet her employer’s legitimate expectations for punctuality and accountability. Consequently, the Court’s determination of failure to meet her employer’s legitimate expectations was also fatal to the employee’s race discrimination claims. Next, the Court concluded the employee did not establish the reasonableness of her accommodation request and also the evidence presented for her ADA retaliation claim was insufficient to form a “convincing mosaic” suggesting her employer retaliated against her because she sought accommodations. Last, the Court reasoned the employer never denied the employee any FMLA leave. 

From a period of January 2007 through and including the employee’s termination in 2010, the employer repeatedly documented the employee’s issues with attendance and tardiness in its annual performance reviews. Shortly after the initial performance review, the employee was diagnosed with multiple sclerosis. In October 2007, the employee was placed on a Corrective Action Plan regarding her tardiness. A majority of the performance reviews and documentation demonstrated a finding of marginal performance relating to attendance and punctuality throughout her employment. On May 25, 2008, the employee submitted FMLA Certification paperwork to the employer for her multiple sclerosis requesting certification of intermittent FMLA leave related to her illness and the fatigue derived from it. Although the employer authorized the FMLA intermittent leave, it further informed the employee it was her responsibility to alert her manager each time an absence from work would be necessary, as well as whether or not her absence should be charged to the approved FMLA leave. In December 2008, the employer began allowing the employee to work from home three (3) days per week. In May 2009, the employee received an additional FMLA Certification approval for intermittent leave. Again, the employer required the manager be notified if an absence was to be applied to the FMLA approved leave. In February 2010, the employee requested and was approved to work from home two and one-half days per week. Beginning in March 2010, the employee requested her employer allow her to use badgescans to clock-in, instead of checking in with her supervisor. That request was denied. In March 2010, the Human Resources Director of the employer told Plaintiff she would need to use her FMLA leave for the other half of each office day if she limited her office work to two half-days per week. The Director informed the employee her request did not meet the employer’s “business needs.” 

Thereafter, in March 2010, the employee was given a final written warning for arriving late eight times, ranging from seven to forty-two minutes. In May 2010, the Director requested information from the employee’s physician as to whether her illness met the ADA definition of disability, which was responded to on July 13, 2010. The employee’s physician suggested “a flexible work schedule that would allow her to work efficiently when she is doing well, but allowed for rest on bad days.” On the same day, the employer terminated the employee for her continued tardiness and failure to accurately report her work time.

Upon de novo review, the Court reasoned the employee was not a “qualified individual,” as regular attendance was an essential function of her job. Additionally, the Court reasoned the employee was not meeting her employer’s legitimate expectations, which was fatal to both her ADA claim and Title VII race discrimination claim. Finally, the Court reasoned the employer did not interfere with any FMLA rights of the employee as it continued to approve intermittent FMLA leave, while the employee failed to use her FMLA leave for the two half-days per week. The employer’s continuous and thorough documentation of its issues with the employee’s attendance was critically important to its defense. It continued to provide performance reviews throughout the employee’s employment documenting the employee’s marginal attendance and punctuality. Additionally, it documented the discrepancies between the employee’s alleged performance and audits of her performance.

At KCB&A, we encourage our clients to implement progressive disciplinary policies and to accurately document and review performance of their employees. As demonstrated in Taylor-Novotny, the accurate documentation of performance issues is essential to the defense of an employment discrimination claim.

The research and writing of this article was performed by Bradley J. Smith, J.D. Bradley can be reached with any questions regarding employment discrimination claims and any other general liability defense questions at bsmith@keefe-law.com.

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12-8-14; PART II Rising Min. Wage Bad for Jobs--Good for Your IL WC Claims; Brad Smith, JD Reviews Important ADA Win for Business; WCLA CLE Review by John Karis and much more

Synopsis: The IL Workers’ Comp Lawyers’ Ass’n Final 2014 CLE Presentation for the IL WC Industry. Thoughts and Analysis by John A. Karis JD.

Editor’s comment: On December 4, several crucial IL WC cases were presented by the great folks at WCLA in a continuing legal education format. Some of their key IL WC issues are discussed below. 

·         Fall down rulings compared

One of the cases discussed was Village of Villa Park, in which an employee, claimed he was injured while going down a flight of stairs in a police station. These stairs were only used by employees in the station and were not open to the public. Consequently there was no dispute on the question of whether his injury occurred “in the course of” his employment. The Appellate Court found falling while traversing stairs is a neutral risk and the injuries resulting therefrom generally do not arise out of employment. As with personal risks, the Court ruled compensability under the Act exists where the requirements of the Claimant’s employment create a risk to which the general public is not exposed. “The increased risk may be qualitative or quantitative such as where the claimant is exposed to a common risk more frequently than the general public.” Id.

The Arbitrator denied the claim stating the act of walking down stairs by itself did not establish a risk greater than those faced outside the work place. Thus, the Arbitrator concluded Claimant failed to prove his injuries arose out of and in the course of his employment. The Commission panel reversed the Arbitrator's decision, finding the event was “caused” by an accident. The Commission reasoned, at the time of the fall, Claimant's use of the stairs fell within the “personal comfort doctrine” and, therefore, arose out of and in the course of his employment. Further, the Commission concluded Claimant's necessary and repeated use the stairs for his employment exposed him to a greater risk than the general public.

The IL Appellate Court, agreed with the IWCC decision and found the injury was compensable. They believed the facts supported the Commission’s finding Claimant’s fall and resulting injury arose both out of and in the course of his employment and its holding in this regard was not against the manifest weight of the evidence. The Appellate Court reasoned the evidence of record supported the Commission’s finding that the claimant was “continually forced to use the stairway” both for his personal comfort and “to complete his work related activities.” Specifically, the evidence established Claimant was required to traverse the stairs in the police station a minimum of six times per day. This fact coupled with evidence Claimant informed his superiors, prior to his fall, and his supervisor had seen him limping prior to the work event supported the inference the Village required the claimant to continuously traverse the stairs in the police station, knowing he had an injured knee.

We disagreed with this ruling when it was filed and continue to disagree respectfully with our peers at WCLA. We do not feel walking on stairs six times a day means Claimant was “forced” to do anything—he did his job and walked around his work station like thousands of workers do and that isn’t an unusual number of times to ascend and descend stairs to cause an increased risk.

Not All IL WC Fall Downs are Compensable

What if the claimant was injured walking down a hallway or other flat surface instead of stairs, would the injury still be compensable? Interestingly, the WCLA group discussed Julie Meierdirks  v. Northbrook School District #2 a case decided before Village of Villa Park. This case involved a teacher who fell while walking in a normal fashion without carrying any items and on what was termed by all parties as “industrial carpeting without defect.” The Arbitrator stated Petitioner did present any evidence to explain the cause of her fall. In fact, Petitioner stated she was not carrying any items in her hands nor was she walking at an increased rate. Therefore there was no evidence presented establishing a cause for the Petitioner’s fall which is the Petitioner’s burden in every case. The claim was denied and the decision became final.

·         Interstate Scaffolding/Matuszcsak is still out there

The defense attorneys in Matuszcsak v. IWCC have filed for a rehearing on this case and are awaiting results. The parties disagreed on whether the Commission utilized the correct legal analysis in vacating the arbitrator’s award of TTD following the Claimant’s termination from his employment for admitted theft. The Appellate Court held Claimant's for-cause termination, arising out of theft from employer, did not amount to refusal of light-duty work and thus did not provide basis for denial of TTD benefits.

The IL Appellate Court stated in their holding, per Interstate Scaffolding, the critical inquiry for the Commission when determining claimant's entitlement to TTD was whether his medical condition had stabilized and he had reached MMI. They ruled the Commission went beyond such considerations in vacating the Arbitrator's award of TTD and reversed to provide benefits. By this theory, anyone in light duty work can quit and still get benefits because almost all workers on restrictions are still under the care of a physician or other healthcare giver.

Please note our thought this ruling makes physician’s “off work” notes even more useless than in the past. We tell the attorneys on the other side and all claims handlers we never recommend paying any IL WC benefits based solely on a blind “off work” note from a doctor. If the legal standard above requires proof the worker needs continued medical attention and hasn’t reached MMI, a doctor can’t satisfy that standard simply by writing “off work” on a piece of paper and signing it.

This article was researched and written by John A. Karis, JD. The opinions John is voicing are his and not those of any member of WCLA or its board. John can be reached 24/7/365 for questions about WC at jkaris@keefe-law.com

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Synopsis: Quick Follow-up on Last Week’s Article about Refusing-to-Hire or Terminating Candidates/Workers with Criminal Convictions.

Editor’s comment: A number of readers asked about it and we have the answers as to what a federal “Statement of Rights” is if you don’t hire or actually fire someone with a prior criminal conviction.

“Statement of Rights” comes from the FRCA:

Under federal law, if an employer uses information from an investigative consumer report for an "adverse action" - that is, denying the job applicant, terminating the employee, rescinding a job offer, or denying a promotion - you must take the following steps, which are explained further in the Federal Trade Commission's web site, www.ftc.gov/bcp/edu/pubs/business/credit/bus08.shtm

• Before the adverse action is taken, the employer must give the applicant a "pre-adverse action disclosure." This includes a copy of the report and an explanation of the consumer's rights under the FCRA.
• A summary of consumer rights under the FCRA can be found at: http://www.esrcheck.com/file/CFPB_Summary-of-Rights-Under-FCRA.pdf
• After the adverse action is taken, the individual must be given an "adverse action notice." This document must contain

• • The name, address, and phone number of the employment screening company,
  • A statement this company did not make the adverse decision, rather that the employer did, and
  • A notice that the individual has the right to dispute the accuracy or completeness of any of the information in the report.

Modified disclosure and adverse action procedures under the FCRA (§604(b)(3)(B)) apply to positions subject to U.S. Department of Transportation (DOT) regulations such as truck drivers. The DOT has independent authority to set qualifications for workers in transportation industries. (49 USC §31502).

We caution all of our readers to grab your employment applications and see if you ask candidates about criminal convictions. If you do, get that out of there or you will soon be breaking the law! Our defense team at KCB&A is happy to assist with any issues.

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Synopsis: JC Johnson of Dorsett, Johnson & Swift, our favorite Texas defense partner.

Editor’s comment: We get asked all the time who the best Texas defense lawyer may be and our response is uniform—JC Johnson of Dorsett, Johnson & Swift. Unlike Illinois, the State of Texas is booming with almost 400,000 new jobs in the Lone Star State this past year. Texas is getting more new jobs in a single month than Illinois has developed in the last year. JC Johnson is our go-to guy for national and regional clients needing solid defense advice.

Serving in senior management executive roles in the insurance and real estate industries, as well as serving as legal counsel for numerous companies within those industries, JC Johnson has extensive knowledge of both the business and legal issues that face companies in the modern business environment. This understanding allows him to offer legal solutions that are efficient and effective. Mr. Johnson manages the real estate, title insurance and workers compensation divisions of Dorsett Johnson & Swift, LLP and supports the firm’s liability defense litigation division in the North Texas region.

Additionally, Mr. Johnson assists clients with commercial contracts, commercial collections, entity formation, employment issues and business litigation. He also serves the business community as a speaker and educator on topics of legal issues, risk management and litigation. They are a one-stop shop with defense coverage for virtually the entire states of Texas and Oklahoma.

His great website with photo, background and contact information is http://dorsettjohnson.com/attorneys/jcjohnson/.

12-1-2014; Two New Illinois Laws Are Coming to Bewitch Illinois Business; Welcome New IWCC Chairman Ron Rascia; Guest Article on FCE's from Joe Castronovo and more

Synopsis: January 2015 is Approaching With *Puff* - Two New Challenges for HR/Safety/Risk Managers.

Editor’s comment: Employers in Illinois may have to review your workplace policies to comply with two laws that go into full effect on January 1, 2015.

The first new law is the Compassionate Use of Medical Cannabis Pilot Program Act or CUMCPPA. This legislation becomes fully effective in early 2015 when sixty state licensed marijuana dispensaries begin full-scale operations. This law takes employers into a new and challenging arena. However, initial legal compliance shouldn’t be too complex to rapidly understand.

The law provides a person suffering from one or more of a specific set of ailments may be certified by a licensed physician as a candidate that may benefit from the use of cannabis. Your worker may present this certification to the Illinois Department of Public Health to register as a “qualified patient.” Once approved by IDPH the worker will receive a “Registry Identification Card.” This card is the crucial or game-changing document and must be presented at a licensed dispensary in order to receive prescribed marijuana. Without the card, the dispensary won’t dispense.

The CUMCPPA specifically addresses an employer’s liability with respect to your workers who are registry cardholders.

1.    It is illegal for an Illinois employer to discriminate against someone solely because that person is a registry ID cardholder and marijuana user;

2.    That said, no employer will be held liable solely for employing a cardholder;

3.    No employer is required to allow the cardholder to use or possess cannabis on the premises of the business during working hours—as we have advised our readers, we recommend starting a “no marijuana here” drug policy.

4.    Employers may discipline or discharge an employee if he or she shows objective signs of impairment from the use of cannabis.

5.    If the employer has a “good faith” belief a registered cardholder used or possessed cannabis at work or violated work rules for impairment on the job, there is supposedly no liability for disciplining/discharging the individual.

In our view, the only way to figure this out is going to be expensive litigation. We feel you can and should try to avoid such litigation by the easiest path—barring marijuana from your workplace with a solid drug and alcohol program. If you need a draft policy, send a reply and we will forward our draft policy for your review. Please note one of the toughest things about testing for marijuana is you can prove the person has used it but when they did and how much they used it is much, much tougher. We do feel this new law will also heighten the need for security cameras and footage to demonstrate impairment.

The law further intends to provide Illinois employers should have no liability to a third party who was injured by an employee impaired by cannabis if the employer was not aware of the impairment. We think that provision is almost silly—what is aware? How aware? The only way to figure that out is more lawyers and lawsuits.

CUMCPPA does not apply to employers whose workers are subject to annual random drug testing under U.S. Department of Transportation regulations. If your company or subsidiaries employ interstate truckers, pilots, flight attendants, airline mechanics, limousine or bus drivers your drug testing obligations likely do not change in light of this new law.

This new legislation is a pilot program and has a “sunset” provision that causes it to expire on January 1, 2018, unless renewed by the General Assembly.

The Job Opportunities for Qualified Applicants Act.

The Job Opportunities for Qualified Applicants Act was signed into law in July 2014, and goes into effect on January 1, 2015. This so called “Ban the Box” law is designed to limit an employer’s ability to screen initial job applicants based on criminal convictions. It only applies to employers with fifteen or more employees. The law indicates private employers may not inquire about, consider or require disclosure of an applicant’s history of criminal convictions until the person has:

ü  Been determined to be qualified for the applied-for position and has been notified he/she has been selected for an interview; or

ü  Has been given a job offer conditional on completion of the screening process.

As odd as it sounds, employers may still deny employment based on a criminal conviction but this law shifts inquires about such information to a later point in the application/interview/hiring process. Please note using a record of arrests or an expunged conviction as a basis not to hire remains prohibited.

From an HR perspective, we recommend:

Ø  Review your current initial employment screening documents to see if they ask for information on criminal convictions. If you don’t take that out, you may be sued.

Ø  Once the initial eval is completed and you confirm the candidate is qualified, send a notice indicating the next step is your need for more information.

Ø  If your company conducts formal background checks, at that point, extend the authorization form to the candidate.

Ø  If you make a job offer to any candidate before a background check is completed, advise the candidate your offer is conditional and subject to withdrawal depending on the information later obtained.

Ø  If you reject the offer of employment based on a criminal conviction record, you must provide a federally approved “Statement of Rights” to the applicant. If you need a copy, send a reply.

To comply with state law and EEOC regulations, notify all candidate any criminal conviction does not automatically disqualify the person from employment. Confirm you will take into account all relevant information, such as the nature of the crime, when it took place and the person’s history of employment since then. Your goal in doing so is to get your candidates to tell the truth.

The defense team at KCB&A is happy to help with implementation and counseling regarding these new laws. If you have questions or concerns, send a reply.

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Synopsis: Former IWCC Chairman Latz Left Yesterday, Long Live Ron Rascia, the New Chairman!

Editor’s comment: Your editor first met Ronald Rascia at The John Marshall Law School in the fall of 1976. He was a great law student and is now a great lawyer and administrator. We are certain he is familiar with all the aggressive interests that intersect at the IWCC.

Governor Quinn has appointed Ronald A. Rascia as Acting Chairman, effective today. Chairman Rascia first joined the IL Workers’ Compensation Commission in 2011 as General Counsel, and later added the duties of the Secretary of the Commission. Ron is a past president of the Central States Ass’n of the IAIBC. Effective today, Assistant Secretary Brendan O'Rourke will serve as Acting Secretary. 

Chairman Rascia worked for the Illinois Attorney General for nine years as a supervising attorney in the General Law Bureau, where he defended State agencies in state and federal courts. As an attorney in the private sector, he served as General Counsel to Northwestern Golf Company and Platinum Financial Group.

Chairman Rascia earned a BA in Economics from DePaul, and both a JD and LLM in Intellectual Property from John Marshall Law School.

Former Chairman Michael Latz resigned yesterday November 30th. Both sides of the IL WC Bar are sad to see him move on but we are sure he will do very well.

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Synopsis: The Functional Capacity Evaluator or FCE-Can It Be a Claims Mistake? Analysis by Guest Commentator Joe Castronovo, PT, DPT, MTC from Illinois Bone And Joint Institute, LLC.

Editor’s comment: In a recent article entitled How WC Adjustors Can “Smoke” A WC Claim Long Before Defense/Legal is Involved, it was suggested that an FCE could create further problems in defending a case. As a seasoned physical therapist and a veteran of over 500 FCEs, I concur with this notion. My work as an expert witness has allowed me to see first-hand how a subpar FCE can incorrectly label a capable human being. In essence, this injustice who can cast a fishing pole and launch a boat, results in a decision of total/permanent disability and a lifelong pension for a capable individual. However, the proper FCE can be beneficial to all parties. So when should a client be referred to a FCE?

First, an FCE is needed to determine a person’s ability to work safely. However, all WC injuries need not be referred for an FCE. I agree with the article that the physical therapist’s notes throughout therapy and work conditioning are generally sufficient to determine a person’s work ability. However, there are several additional factors to consider. The longer a person has been off work, the more likely it is that they will need a FCE to determine current function due to “deconditioned syndrome.” Also, when a person has highly specific or heavy job demands, then the ability for them to work safely may be difficult to determine with therapy interventions alone. A “good” FCE should have components in place within the test that help determine a person’s lifting capacity prior to actually lifting. Through detailed computerized testing of strength and lifting capacity, a skilled clinician can predict what a patient should lift and not be injured.  A therapist may not be able to do this during regular therapy treatments.          

The second reason a person should be referred for an FCE is to determine malingering and sub-maximal efforts. Keep in mind conscious sub-maximal effort and the presences of non-organic signs are two different presentations. I have witnessed people not give maximum effort but they were not inventing or exaggerating symptoms. On another hand, I have seen fabricated symptoms in conjunction with the patient putting forth good effort. It may depend on the way they were coached or how the person feels they should behave during the test. Sub-maximal effort can be measured scientifically and may be conscious but could be subconscious due to pain, fear, or anxiety. Malingering, symptom exaggeration, or non-organic signs require knowledge on the part of the patient and are more of an art form to detect. Yet, non-organic signs can also be measured objectively. It makes for an interesting test when a patient is both malingering and putting forth sub-maximal effort. A FCE that determines sub-maximal effort needs to be based on scientific evidence instead of subjective reports or observations alone. A patient who is coached to act disabled is not a match for the experienced clinician who has compiled scientific evidence to support their results that conscious sub-maximal effort was given.

Finally, along with medical records, testimony, disability ratings, and the addition of impairment ratings, a scientific FCE is useful information at the IL WC Commission or Indiana WC Board. When IRs were first introduced, the lecture circuit preached, “Impairment does not equal disability.” Therefore, the impairment rating alone will not decide disability. Disability is a physical impairment that limits life functions. An amicable FCE determines the exact disabilities and abilities that a person can perform for work duties along with validity of effort that reinforces the other medical evidence.

When looking for a “good” FCE, one should ask the following questions.

v  How many validity criteria does your FCE present? I have seen FCEs with less than 10 FCE validity criteria while others have 60-100 validity criteria. Which drug would you trust more, consistency over 100 patient trials or 1000?

v  Is your FCE supported by scientific evidence and has the report (and therapist) held up in legal proceedings? Computer based FCEs that are calibrated regularly help support the scientific evidence.

v  How experienced is your therapist? How many tests has he or she performed? I have seen therapists who took a weekend course and are thrown into the fire and some therapists may only perform a couple of tests a year. It takes time and practice to become confident with administering FCEs. An experienced therapist will be able to detect someone who is coached to be disabled.

v  Is the tester a physical or occupational therapist, or someone with a different degree that may not be fully qualified to perform the exam?

v  The therapist performing the test should never be the treating provider. In my opinion the same company or even the same clinic should not cause an issue, but once a therapeutic relationship exists, a bias exists.

v  Does the report make a clear judgment on the person’s work ability compared to the worker’s actual job demands? Do not pay for general functional descriptions that are left open for interpretation.

v  The WC Community becomes frustrated when a physician determines work ability or MMI based on an invalid FCE. The failed FCE should contain a clear statement similar to, “due to the patient’s sub-maximal effort on today’s test, the test results are not a true indicator of the patient’s current work ability. The patient can perform at higher physical demand levels that are represented in today’s test results.”

If your FCE reports are showing that the patient is working significantly at a lower level than the work conditioning or physical therapy reports, there is something wrong with your tester. The search for an experienced FCE tester and company that provides a strong FCE is worth the effort. An FCE report should never smoke a case but help decide a fair settlement for the defendant or the plaintiff.

We appreciate the writer’s perspective and hard work in creating this article. We are happy to forward comments or thoughts to him.

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Synopsis: Sharpline Allocations, Our Favorite U.S. MSA Provider.

Editor’s comment: One of the great vendors in Vegas last week is the team from Sharpline Allocations. Sharpline Allocations is a customer service and relationship driven provider of Medicare Compliance and Settlement Planning services. At Sharpline, they understand each client’s unique needs, and deliver customized services that allow the claims professional to have complete certainty that each claim is in full compliance with Medicare Secondary Payer regulations.

The main differentiator between Sharpline and their competitors is great service and their hands on approach. They not only make recommendations, but provide assistance and follow up on with adjusters, risk managers, nurse case managers, Plaintiff/Defense counsel and other vendors to follow through on suggestions to reduce exposure and the potentially high cost of an MSA. They stay with the MSA until settlement, as opposed to moving on from the MSA once completed.

They are also piloting a new MSA Intervention program with one of their National accounts that has significant exposure at this time. The idea is that as soon as a Medicare eligible claimant reaches MMI, the file is referred to Sharpline for early intervention/bird’s eye view of any issues and to make recommendations to prep the claim for future settlement with closure of medical rights, and dramatically reduce MSA exposure by that time. This will potentially reduce the future MSA exposure and reserves. It will also drive claim costs down as the client will be able to settle and get the claim closed faster, rather than waiting to address issues at the time of MSA.

They can discuss this concept further if you are interested or to address any questions/ concerns. If you want more information, go to their great website at http://www.sharplineallocations.com/