Wikipedia defines a functional capacity evaluation (FCE) as “a set of tests, practices and observations that are combined to determine the ability of the evaluated person to function in a variety of circumstances, most often employment, in an objective manner. Physicians change diagnoses based on FCEs.”
I, for one, consider FCEs junk science. At the very least, they must be handled with care. Most FCE administrators are not sufficiently grounded in science, case law and forensic issues. Examples may include misquoting standard journal articles and texts, making false statements, providing “junk science” opinions, including predicted functional capacity over prolonged periods projected into the future based on flimsy short-term testing, and interpretation, and deliberately omitting important facts and knowledge. Nevertheless, FCEs are a fairly common component within Florida’s workers’ compensation system.
Chapter 440 is the section of the Florida Statutes containing the workers’ compensation system’s statutory laws. Surprisingly, Chapter 440 contains no reference to FCEs. This means that a judge of compensation claims does not have authority to compel a claimant’s attendance at an FCE. Caution is counseled here: While a claimant cannot be compelled to attend, under some circumstances the refusal to attend may result in the loss of benefits.
Section 440.13(2)(a), Florida Statutes (2017), requires the employer/carrier (E/C) to provide claimant with medically necessary remedial treatment, care, and attendance. If, for example, the physician feels that an FCE will help in determining the future course of the claimant’s treatment, such as regarding physical therapy or medication, or permanent restrictions, and the claimant fails to attend the FCE, the E/C may be justified in denying benefits, including indemnity benefits. See, Lewis v Dollar Rent A Car and ESIS WC Claims (Opinion filed June 9, 2017). Conversely, the E/C can be compelled to furnish the FCE if the physician believes the evaluation is medically necessary.
We recently confronted the FCE issue in one of our workers’ compensation cases. Our client had sustained a significant hand injury. After two surgeries and extensive physical therapy, the treating physician ordered an FCE to determine the claimant’s permanent restrictions. Until then, the doctor had been perfectly comfortable detailing his restrictions in the DWC-25 form after every appointment. Concerned that the FCE administrator would reach faulty or erroneous conclusions, which would hurt our client’s case, we arranged a conference with the doctor. In spite of my efforts in pointing out that he was in the best position to set the claimant’s permanent restrictions, and discussing the inherent flaws associated with the examination, the doctor insisted on going forward with the FCE. Rather than risk a denial of benefits, we agreed to the FCE. If necessary, we will attack the FCE on cross examination and have our own FCE performed with a reputable administrator.
We have had success in the past talking doctors out of ordering FCEs. We go this route when we are satisfied with the doctor’s opinions on our issues. When we aren’t, we will consider having one performed, our thinking being that we might get lucky with persuasive findings.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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