Defense and Plaintiff Expectations of FCE

In the world of workers’ comp, return-to-work, and stay-at-work services, I’ve been around awhile. One advantage of self-promotion and name recognition is that from time to time I’ve been sought out for my professional opinion resulting in interesting and gainful work. That sometimes involves getting a request to take a look at work performed by another professional. These requests have frequently been for “Peer Review” of FCEs and those requests come from attorneys.

What do attorneys look for? I thought I’d jot down some ideas for you and hopefully they will assist you in at least knowing a little more about how your work is picked apart by the legal profession. Who you practice for is up to you – you may pander for Plaintiff referrals or Defense referrals. I’d like to think that I practice for myself and provide a level playing field for all of my FCE subjects by giving them the opportunity to perform well. If they don’t take advantage of the opportunity in a positive way, then that reflects on them and not me.

Now, I realize that we all have a reflexive reaction to attorneys based on our perceptions that have been formed by experience and what we see in the media. And, may times those perceptions are accurate. In over 30 years, I’ve yet to see a kindly Atticus Finch on either side of the table. However reprehensible their behavior may be, they have a job to do: To aggressively represent the interests of their client. Attorneys can be on the side of the one bringing action – Plaintiff or Petitioner. Or, they can be on the side of the one fighting it – Defense or Respondent. Given there are two sides to an argument, it should be no surprise that each side looks at same set of evidence in very different ways.

My philosophy has always been that a FCE answers three (3) fundamental questions. It is the order (and the weight) given to these questions by each side that I find interesting:

The Defense attorney works for the employer. They want to know if the worker tried to magnify their display of function in an effort to appear like they cannot work. They really don’t care if there is a loss in range of motion or strength – it’s all about residual function. The worker has a 3-level lumbar fusion and works as an Ironworker? The worker had an ankle reconstruction and has to balance on a trailer tying down cars and trucks? Many workers are afraid and this fear is manifested in low or inconsistent effort. Fear is often misinterpreted as faking. Really?

The Plaintiff attorney works for the injured worker. They want to know about every degree of range of motion or muscle grade of strength lost – even though the human body compensates and functions quite well in many cases after a catastrophic injury. They want to know about how much pain their client complained about – even though their injury has healed and any chronic pain has nothing to do with the original tissue damage. They would rather that their client not go back to work, or if they do, to not go back to work for a while. Test behavior? Not their client’s fault! The same client who has been gainfully employed for 20 years and has filled out stacks of forms for attorneys and doctors suddenly cannot understand the FCE therapist’s instructions? They didn’t know that they had to provide maximum effort in the functional capacity evaluation. Really?

Regardless of how the attorney utilizes the evidence, an Administrative Law Judge will arbitrate the workers’ compensation or disability case. If the Judge does not like what he or she sees in your report, then your FCE will be thrown out as junk and all the time and money devoted to it will have been wasted. As a practical matter, this will happen once or twice and then customers will stop using you, not only for FCEs but for anything related to workers’ comp.

Judges look for three (3) things from the FCE:

• Was the FCE Provider qualified to perform it and was it safe?
  • Was the Provider Certified in FCE?
  • Was the subject medically safe to test?
• Was the FCE protocol an evidence-based methodology?
  • Did the FCE follow a recognized methodology?
  • Is the methodology supported by foundational and ongoing medical research?
• Did the FCE Provider reach a rational conclusion?
  • Did the data revealed in each test support the Provider's assessment and recommendations?

So, it should be obvious that certain underpinnings need to be in place to establish you as an expert and make your FCE product legally defensible.

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