FUNCTIONAL CAPACITY EVALUATIONS AND RETURN TO WORK:
The Indergard v. Georgia Pacific Case
By Vic Zuccarello, OTR/L, C.E.A.S. II, ABDA – BIO-ERGONOMICS, INC.
And
James M. Paul, Esq. – Ogletree, Deakins, Nash, Smoak & Stewart, P.C

Functional Capacity Evaluations in their modern form have existed since the 1980’s. According to the American Physical Therapy Association (2010), “The purpose of a Functional Capacity Evaluation (FCE) is to provide an objective measure of a patient’s/client’s safe functional abilities compared to the physical demands of work.” FCE’s have been used as the standard tool in determining work readiness in workers’ compensation cases for the last 30 years. They have been adapted for other uses such as in selecting new-hires for strenuous jobs or to test an existing employee’s ability to remain fit-for-duty after an illness or injury. However, federal guidelines and case law have narrowed the scope by which these evaluations may be administered. A recent notable example of a court decision on this issue is Indergard v. Georgia Pacific, 582 F.3d 1049 (9th Cir. 2009). This article is an attempt to clarify the role the FCE and variants of the FCE can play in work evaluation.

FCE’s have many names depending on the provider or a protocol’s copyright. They can also be known as a Functional Capacity Assessments (FCA’s), Physical Capacity Assessments or Evaluation (PCA’s or PCE’s), or Work Capacity Assessments or Evaluations (WCA’s or WCE’s). In the peer-reviewed medical literature, there exist accepted standards of practice (Matheson, 2003) and professional performance guidelines, and validity/reliability studies (Gross, 2002, 2003, 2004, 2006, Lechner, 2008). These items are beyond this scope of this article.

In general, there are certain generally accepted practices related to FCE’s regarding the manner in which they are provided. FCE’s are typically performed by Occupational or Physical Therapists in out-patient clinics and utilize standard clinical evaluation instruments as well as a variety of simple to computerized assessment tools. The FCE is either a “job-specific” test (established job target) or a “generic” test (no job target) depending on the reason for which the subject was referred. Ideally, in the case of a “job-specific” FCE, the provider has at their disposal an established set of job requirements obtained from the employer and/or FCE subject and these are used as requirements to be met during the FCE. But, in the case of a “generic” FCE, the subject is being tested against general guidelines in order to identify the type of work they can safely perform relative to any existing physical limitations they may possess. All FCE protocols contain the same general components including an interview, vital sign screening, musculoskeletal screen, cardiovascular assessment, material handling tests, and non-material handling tests.

The FCE begins with one-on-one discussion. The interview includes discussion of the relevant history of existing physical limitation and residual symptoms, general medical history, and perceived activity limitations. Vital signs are taken to establish a baseline and to assess as to whether the subject is safe to proceed with testing. The evaluation subject is screened for musculoskeletal status generically or for an area that has been treated for injury or illness. Some examples of tests in this screen include range of motion, strength, joint integrity, sensation, or postural alignment. The physical tests most often performed are material handling tasks (lifting, carrying, pushing, pulling) and non-material handling tasks (sitting, standing, walking, reaching, gripping, fine motor function, bending, squatting, kneeling, crawling, and climbing). During assessment of these tasks, the subject is monitored for kinesiophysical signs or substitution, quality of effort via heart rate, perceived exertion, symptomatic response and consistency of performance. These data points are collected to assess the subject’s safety, effort, and perception of pain/disability.

With the passage of the Americans with Disabilities Act of 1990 (“ADA”), employers began to see the value in using FCE’s as employment tests for employee selection and retention. Approximately 130 million people are employed in the United States (Green-McKenzie, 2004). $1.2 trillion annually is the estimated cost of employee health and productivity loss as a result of work-related injury. This is equivalent to approximately 14% of the gross domestic product (Fisher, 2003). Because of rising cost associated with occupational injuries, employers became increasing concerned with worker safety and injury prevention (Leigh, 2004). Employers found that modified FCE’s referred to as functional employment tests are among several effective ways to prevent work-related injuries (Littleton, 2003; Scott, 2002; Harbin, 2005). Accordingly, providers began developing assessment protocols and marketed these products aggressively to Occupational and Physical Therapists eager to generate direct-revenue independent of insurance companies and their re-pricing networks.

Employment Tests are paid for directly by the employer on a fee-for-service basis and an employer should have specific guidelines in their policies and procedures to ensure that their hiring and retention practices are consistent and fair and are in line with State and Federal Law. The employer’s policies should be developed by legal counsel. Healthcare providers should not develop hiring and retention policies for employers.

FCE’s in their original form should not be used as employment tests and the FCE provider should not assume that just because they are a service provider they are immune to legal repercussions in the event that their evaluation results in a denial of employment to a new-hire or in a termination of an existing employee’s employment. The provider should have a basic knowledge of Federal and State Law and where they fit as a helping agent in the hiring and return to work process. Specifically, these laws are The Americans with Disabilities Act, The Family Medical Leave Act (“FMLA”), and state Workers Compensation laws.

In general, the ADA prohibits discrimination against an applicant or employee based on a “disability”, which is a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1). Someone who has a record of a disability or is perceived to have a disability is also protected by the ADA. Id. The ADA also requires employers to provide reasonable accommodations to applicants and employees in certain circumstances. 42 U.S.C. § 12112(b)(5).

While the ADA does not prohibit employers from subjecting applicants and employees to physical agility and physical fitness tests (or place restrictions on those tools), employers cannot require employees to submit to a “medical examination” unless such examination or inquiry is shown to be job­related and consistent with business necessity. 42 U.S.C. § 12112(d). Applicants can be subjected to medical examinations only after they are first given a conditional offer of employment, which cannot be revoked unless the examination demonstrates the applicant currently cannot safely perform all of the essential job functions for the position. Id.

The difference between medical examinations and physical agility tests was recently discussed by the court in Indergard. A physical agility test simply determines an individual’s ability to perform physical job tasks or functions, and a physical fitness test merely requires the performance of physical tasks such as running or lifting. However, medical examinations go one step further and actually measure, monitor or test bodily functions and biological reactions. The court in Indergard applied the Equal Employment Opportunity Commission’s enforcement guidance factors for determining whether a medical examination existed. One or more of the following characteristics could indicate a test is a “medical examination” for purposes of the ADA:
(1) whether the test is administered by a health care professional;
(2) whether the test is interpreted by a health care professional;
(3) whether the test is designed to reveal an impairment of physical or mental health;
(4) whether the test is invasive;
(5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task;
(6) whether the test normally is given in a medical setting; and/or
(7) whether medical equipment is used.

When balancing all of these factors (no one factor is dispositive), the test to which Georgia-Pacific subjected Indergard was deemed to be a “medical examination” because it included range of motion and muscle strength tests, it measured Indergard’s heart rate and breathing both before and after a treadmill test, and it involved observations and documentation by the physical therapist regarding Indergard’s heart rate, aerobic fitness, current pain level, use of medication and assistive devices, communication, cognitive ability, attitude, and behavior. The court noted that there was no reason to limit the term “health care professional” to only doctors, and physical therapists and nurses should fall into that category when conducting these types of tests and exams.

Therefore, the appeals court sent the case back to the trial court for a determination whether the examination was “job­related and consistent with business necessity.” If the examination had merely been a physical agility or physical fitness test, then Georgia-Pacific would not have been so restricted by the ADA and the “job­related and consistent with business necessity” requirement would not have been imposed.

It is not yet known whether Georgia-Pacific violated the ADA by requiring Indergard to submit to the medical examination in question. Perhaps, the trial court will find that Georgia-Pacific correctly required the medical examination before allowing Indergard to return to work and that it was “job-related and consistent with business necessity.” However, it seems that a physical agility and/or physical fitness test may have sufficed in Indergard’s situation. Georgia-Pacific may not have intended to subject her to a “medical examination” as defined by the ADA. In the future, Georgia-Pacific and other employers will surely be more careful when determining what type of test or exam they want or need with regard to a particular employee or situation.

The ADA imposes these restrictions no matter whether the employee is returning to work from a leave of absence or injury, or whether the employee is currently working but with apparent difficulty or pain. When an employee is returning from a leave of absence that is protected by the FMLA (an employee must both be eligible for FMLA protected leave and have a qualifying “serious health condition”), he can be required to provide a fitness-for-duty certification prior to returning to work. 29 CFR § 825.312. The FMLA regulations were only recently revised in January 2009 to allow this. Prior to 2009, the FMLA prohibited any type of examination or certification beyond a simple statement by the employee’s health care provider that he could return to work. In order to take advantage of this new FMLA return to work tool, an employer must provide the employee with a list of those essential job functions at the beginning of the leave and must specify that the fitness-for-duty certification is required to address the employee’s ability to perform those essential functions. Id. That list of essential job functions should be used by the provider or therapist to certify that the employee can safely perform each and every essential job function.

The good news for the providers and therapists is that these employment laws primarily govern and impose liability on “employers”. However, it is theoretically possible for providers and therapists to be liable for violation of these laws. Especially when dealing with the parallel state laws, an employee can claim that the provider or therapist “aided and abetted” a violation by an employer and thereby violated the discrimination laws too. Providers and therapists would be best served to protect themselves by asking important questions of the employers ordering the test or examination. A little bit of knowledge regarding these employment laws will help providers and therapists spot red flags and avoid obvious misuse/abuse of tests and exams by employers. This article is not intended to serve as legal advice, but there are basic steps the FCE provider and employer can take to protect themselves from potential liability. These steps do not constitute an all-inclusive list and these suggestions will evolve with new case law.

The first general recommendation is for the provider to utilize a protocol that adheres to the generally accepted “standards of practice” for FCE’s (Matheson, 2003):
• Safety – Given the known characteristics of the subject, proper administration of the FCE measure should not be expected to lead to injury.
• Reliability – The score derived from the FCE measure should be dependable within the test trial and across evaluators, patients, and the date or time of test administration.
• Validity – The decision based on interpretation of the score derived from the FCE measure should reflect the subject’s true ability.
• Practicality – The cost of administration, interpretation, and reporting of the FCE should be reasonable.
• Utility – The overall value of the FCE to its users.

The second general recommendation is for the provider to acquire a job description that outlines not only the essential job functions but also the physical tasks making up those functions if there is an established job target. If the document contains insufficient information, contact the employer for clarification or preferably go onsite to do your own analysis.

The third general recommendation is for the provider to ensure that their informed consent policies include a section that states that certain musculoskeletal and physiological measurements shall be screened and monitored to ensure that the test subject is safe to test and continues to be safe throughout the testing process. This informed consent should also include consent for release of information to the employer and other relevant parties. A recent webinar held by Roy Matheson recommends this policy to be written as an “Authorization to Evaluate, Collect, and Disseminate Medical Information”. In effect this terminology would provide some protection when testing existing employees.

The fourth general recommendation is for the provider to understand the situation in which they will be evaluating a subject and adjust the FCE content accordingly. Again, the following are general recommendations for the therapist/provider and employer and in no way constitute legal advice.
• Return to work in a workers’ compensation case:
oFocus the musculoskeletal examination on the area of injury only.
o Physiological measurements such as heart rate and blood pressure can be taken and monitored to assess safety and effort.
o Restrict the tasks tested to the physical demands outlined in the essential functions.
o Unlike the therapist in the Indergard case, refrain from recommending the employee “stay off work”. Rather, craft your recommendations as a statement of what the employee “can do”. It is the employer’s responsibility to engage in dialogue with the employee regarding their specific return to work disposition relative to the physical and functional limitations identified by the therapist/provider.
o Offer specific opinions related to the area of injury and its effect on those job-specific functions.
o Minimize the risk of unlawful retaliation against an employee by returning him to work if able to safely do so given his physical restrictions.
o Most FCE providers’ standard evaluation reports are acceptable to release to relevant parties in these cases such as the referring physician, the payor for the evaluation, and a nurse case manager if involved.

• Return to work after an FMLA leave of absence:
o Require a fitness-for-duty certification only if the employee was advised at the beginning of the leave that the certification would be required.
o Make sure the provider/therapist is using a valid list of essential job functions provided by the employer.
o Test and certify only with regard to the particular health condition that caused the employee’s need for FMLA leave in the first place (as opposed to other medical conditions or disabilities).
o No other restrictions or requirements may be imposed or required of employees returning from an FMLA leave of absence unless or until an employee exhibits problems with or inability to perform the job after his/her return.

• Existing employee demonstrating difficulty performing the job:
o The employer has the right to test an employee who has been working but is complaining of difficulty or demonstrating difficulty performing one or more essential functions of the job.
o In this case, the evaluation would not be a FCE, but would be a Fit-For-Duty Evaluation.
o It is recommended that the test simulate the job as closely as possible with respect to the loads lifted, carried, pushed, pulled and with respect to the positions and movements required to perform the essential functions of the job.

o The therapist/provider may take and monitor vital signs for safety only. These measures should not be used as “pass” or “fail” criteria.
o The provider should only disseminate information to the employer that addresses only the employee’s ability to safely “meet” or “not meet” the physical tasks associated with the job’s essential functions. Do not release any information specific to the employee’s medical condition.

• Existing employee being tested for transfer to a different job with the same employer:
o The test should not include any medical components, rather it should be restricted to the essential functions of the job. In this case the evaluation would not be a FCE, but would be a Fit-For-Duty Evaluation and include only physical agility or physical fitness testing.
o The therapist/provider may take and monitor vital signs for safety only. These measures should not be used as “pass” or “fail” criteria.
o The provider should only disseminate information to the employer that addresses only the employee’s ability to safely “meet” or “not meet” the physical tasks associated with the job’s essential functions. Do not release any information specific to the employee’s medical condition.

• New-hire candidate being tested for a job with a new employer:
o This is done when a contingent offer of hire has already been proffered to the employee candidate, otherwise known as a post-offer evaluation.
o In this case, a general medical history and examination is appropriate, as well as an evaluation of the candidate’s ability to safely perform the essential functions of the job.
o The therapist/provider may take and monitor vital signs for safety only. These measures should not be used as “pass” or “fail” criteria.
o As stated above, help protect the employer by providing only the result, i.e., “pass”, “fail” or “need more information”, rather than divulging medical and disability information to the employer.
o The candidate’s offer can only be lawfully revoked if he/she is physically disqualified from the job due to an ability to safely perform all of the essential job functions.

Functional Capacity Evaluations can be useful, valid, and reliable tools to determine readiness for work. However, they must be adapted to the specific situation in which the subject is testing for a job. If the reason for the test is to evaluate the ability of an employee to perform a specific job, the test should replicate the job’s essential functions as closely as possible. Whenever testing an existing employee, standard medical/physiological measures should be taken to ensure test safety and not as a criterion to determine the employee’s ability to return to work. It is advisable that the FCE provider have a relationship with the employer allowing familiarity with the job’s tested. Finally, it is recommended that the employer have an established policy for new-hires and for employees returning to work that has been developed with the assistance of legal counsel.

References:

1. Matheson, R. Indergard v. Georgia-Pacific Court Case Webinar, Jan 19, 2010.
2. Matheson, L. (2003). The functional capacity evaluation. In G. Andersson & S. Demeter & G. Smith (Eds), Disability Evaluation. 2nd Edition. Chicago, IL; Mosby Yearbook.
3. American Physical Therapy Association: Occupational Health Guidelines. APTA website, 2010.
4. Gross, D. P., Battie, M. C., Does functional capacity evaluation predict recovery in workers’ compensation claimants with upper extremity disorders? Occup Environ Med 63(6), June 2006.
5. Gross, D. P., Battie, M. C., Cassidy, J. D., The prognostic value of functional capacity evaluation in patients with chronic low back pain: part 1: timely return to work. Spine 29(8), Apr 2004.
6. Gross, D. P., Battie, M. C., The prognostic value of functional capacity evaluation in patients with chronic low back pain: part 2: sustained recovery. Spine 29(8), Apr 2004.
7. Gross, D. P., Battie’, M. C., Reliability of safe maximum lifting determinations of a functional capacity evaluation. Physical Therapy 82(4), Apr 2002.
8. Gross, D. P., Battie’, M. C., Construction validity of a kinesiophysical functional capacity evaluation administered within a workers’ compensation environment. J Occup Rehabil 13(14), 2003.
9. Lechner, D.E.; Page, J.J.; Sheffield, G. Predictive validity of a functional capacity evaluation: the physical work performance evaluation. Work: 31(1), 2008.
10. Green-McKenzie, J., Workers’ compensation costs: still a challenge, Clin Occup Environ Me. 2004 May; 4(2):ix, 395-8.
11. Fisher TF. (2003). Perception Differences Between Groups of Employees Identifying Factors That Influence a Return to Work After a Work-Related Musculoskeletal Injury. Work, 21(3), 211-20.
12. Harbin G, Olson J.(2005). Post-Offer, Pre-Placement Testing in Industry. Am J Ind Med, 47(4), 296-307.
13. Leigh JP, Waehrer G, Miller TR, Keenan C. (2002). Costs of Occupational Injury and Illness Across Industries. Scand J Work Environ Health, 30(3), 199-205.
14. Littleton M. (2003). Cost-Effectiveness of a Pre-Work Screening Program for the University of Illinois at Chicago Physical Plant. Work, 21(3), 243-50.
15. Scott LR. (2002). Post Offer Screening. AAOHN, 50(12), 559-63.

Vic Zuccarello, OTR/L, C.E.A.S. II, ABDA graduated from the University of Missouri Program in Occupational Therapy in 1985 and has specialized in disability prevention and management for 23 of his 25 years in practice. He is owner and Vice President of BIO-ERGONOMICS, Inc., an industrial rehab and consulting company. Aside from providing Functional Capacity Evaluations, he is certified as an Ergonomic Evaluation Specialist, certified as an Ergonomic Assessment Specialist II, and is a Senior Disability Analyst and Diplomate through the American Board of Disability Analysts. Vic has developed and is chief instructor for the Functional Capacity Evaluation Certification and Employment Testing courses provided through Back School of Atlanta. He has been published in professional journals and has presented locally, regionally, nationally, and internationally.

James M. Paul, Esq., is a shareholder in the St. Louis office of national employment law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. He practices labor and employment law in federal and state courts in Missouri and Illinois; practices before the Equal Employment Opportunity Commission, the National Labor Relations Board and several state agencies; and advises employers on all labor and human resource management issues. Jim received his law degree from Washington University and his B.S.B.A. degree, summa cum laude, in labor relations from Saint Louis University. Upon graduating from law school, he served as judicial law clerk to the Hon. William Ray Price Jr. of the Missouri Supreme Court and then as a Missouri assistant attorney general. In the latter position, Jim represented the Missouri Department of Labor and Industrial Relations, and the Missouri Commission on Human Rights by enforcing state wage and hour laws, and state discrimination laws. Martindale-Hubbell awarded Jim its “AV” rating, and Super Lawyers named him in its “Top Employment and Labor Attorneys” lists for 2008 and 2009. He was also named to the 2010 edition of The Best Lawyers in America as a top labor and employment lawyer.