copyright© functional capacity experts, llc conference/speaker...› fce examiner should consider...

Copyright© Functional Capacity Experts, LLC

1

1. How Do You Know if the Injured Worker Gave their

Best Effort During a FCE?

2. The Unfortunate Misuse & Abuse of Waddell’s Signs.

3. Job Descriptions as a Legal Basis for Employment

Decisions.

4. Workers’ Compensation and the ADAAA: Must be

full-duty to return to work leads to disability

discrimination.

Copyright© Functional Capacity Experts, LLC 2

How Do You Know if the Injured Worker

Gave their Best Effort During a FCE?


What a claimant can still do despite his or her functional limitations.

“The most you can still do despite your limitations.”

“An assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.”› “A regular and continuing basis means 8 hours a

day, for 5 days a week, or an equivalent work schedule.”

Proposed Revision to APTA FCE Guidelines, 2017.CFR 416.945 Residual Functional Capacity.


“Most physicians are not trained in assessing the full array of human functional activities and participations that are required for comprehensive disability determinations.”

“The relationship between impairment and disability remains both complex and difficult, if not impossible, to predict.”

Guides to the Evaluation of Permanent Impairment. 6th Edition. American Medical Association. 2009.


“The physician or treating

provider may determine diagnosis

and medical prognosis, but

functional testing is more

objective than the current use of

estimates, commonly called

restrictions. In an evidence-based

medical model, measurements

are preferable to estimates.”

Guide to the Evaluation of Functional Ability. American Medical

Association. 2009.


In SSD claims, the medical diagnosis or medically determinable impairment may be sufficient to meet the “listing of impairments.”

You can not reliably predict the severity of a claimant’s functional limitations based on their medical diagnosis or medically determinable impairments.

How does a physician or an ALJ reliably establish the existence or non-existence of significant functional limitations without objective evidence from functional testing performed by a qualified FCE examiner?


Both organizations essentially

agree that:

Measured evidence is more

objective than speculation.

The functional limitations caused

by most medically determinable

impairments can not be reliably

predicted.


Medically determinable

impairments combined with

the results from content valid

functional testing

administered by a qualified

FCE examiner form the basis

for establishing the severity of

functional limitations.


Definition:

A comprehensive performance-based medical assessment of an individual’s physical and cognitive abilities to safely participate in work and other major life activities.

Proposed Revision to APTA FCE Guidelines, 2018.


2 types:

Job/Occupation Specific FCE

Any Occupation FCE



Duration:

The FCE examiner is ultimately responsible for determining the amount of time medically necessary to design, administer, and interpret the results of the FCE based on the complexity of the case.

APTA FCE Guidelines, 2011.

Guide to the Evaluation of Functional Ability. American Medical Association. 2009.


Duration factors:

1. Type of FCE needed.

2. Physical and/or cognitive demands of the job/occupation.

3. Chronicity and severity of the physical and/or cognitive impairments.



Longer duration

› Individual with chronic physical and/or

cognitive impairments

› Individual has reached MMI and permanent

work restrictions are needed

› Individual reports fatigue and delayed onset of

pain aggravation following activity participation



Shorter duration

› Individual with acute to sub-acute physical and/or

cognitive impairments

› Individual has not reached MMI and temporary

work restrictions are needed for early return to

work

› Baseline functional abilities are needed prior to

participation in an advanced work rehab program




4 Essential components:

1. Medical records review and summary, especially objective diagnostics.

2. Interview with client to discuss medical hx, symptoms, work history and education.

3. Physical examination to document objective medical evidence (signs) of impairments.

4. Content valid functional testing.

APTA FCE Guidelines, 2011.

Guide to the Evaluation of Functional Ability. American Medical Association. 2009.

Psychophysical monitoring.

Biomechanical monitoring.

Physiological monitoring.

Isometric/Static Strength testing.

Hand Grip Strength testing.

XRTS Lever Arm testing.Copyright© Functional Capacity Experts, LLC 17

Rating of Perceived Exertion (RPE)

Pain Level/Symptoms

May provide a good indication of a claimant’s safe tolerance to activities, but validity relies completely on the claimant’s subjective perceptions.

Borg. Psychophysical bases of perceived exertion. Med & Sci in Sp& Exer. 14(5):377-381, 1982.

Garg, Waters, Kapellusch, Karwowski. Psychophysical basis for maximum pushing and pulling forces: A review and recommendations. Int J Ind Ergo. 44(2):281-291, 2014.

Genaldy, Asfour, Mital, Waly. Psychophysical models for manual lifting tasks. App Ergo. 21(4):295-303, 1990.

An, Wang, Cope, Williams. Quantitative evaluation of pain with pain index extracted from electroencephalogram. Chi Med J. 130(16):1926-1931, 2017.


√

Muscle recruitment

Base of Support

Posture

Control & Movement patterns

Clinical observations (by trained examiners) of biomechanical signs of effort based on operationally defined criteria have shown good validity and reliability to determine safe effort levels.

Gross, Battie. Construct validity of a kinesiophysical functional capacity evaluation administered within a workers’ compensation environment. J Occu Rehab. 13(4):287-295, 2003.

Reneman, Fokkens, Dijkstra, Geertzen, Groothoff. Testing lifting capacity: validity of determining effort level by means of observation. Spine. 30(2), E40-E46, 2005.

Gross, Battie. Reliability of safe maximum lifting determinations of a functional capacity evaluation. Phys Ther. 82(4): 364-371, 2002.


√


Light Moderate Heavy Maximal

Muscle

Recruitment

Prime

movers

only

Recruitment of

accessory muscles,

trunk and neck

stabilizers

Pronounced

recruitment of

accessory muscles

and stabilizers

Bulging of

accessory muscles

and stabilizers

Base of

Support

Natural

stance

Stable base Wider base Very solid base

Posture Upright Beginning of

counterbalancing

Increasing

counterbalancing

Marked

counterbalancing

Control &

Movement

Pattern

Easy

movement

patterns

Smooth

movements

Begins to use

momentum,

difficult but not

max

Uses momentum

in a controlled

manner, loss of

control with

added weight

Heart rate

O2 saturation

Blood pressure

Respiration rate

Continuous heart rate monitoring to calculate

% heart rate increase and % maximum aerobic capacity have shown to have good validity and reliability for determination of safe effort levels.

Morgan, Allison, Heart rate changes in functional capacity evaluations in a workers’ compensation population. Work. 42(2):253-257. 2012.

Innes. Reliability and validity of functional capacity evaluations: an update. Int J Dis Mgmt Res. 1(1):135-148, 2006.

Jay, Lamb, Watson, Young, Fearon, Alday, Tindall. Sensitivity and specificity of the indicators of sincere effort of the EPIC lift capacity test on previously injured population. Spine. 25(11):1405-1412. 2000.


√


Load

(lbs)

Pre-Test

HR

Peak

HR

% HR

↑

% Max

AC

PWT

C<30

F=30-41

O>41

MPHR HRR 85%

MPHR

20 70 82 17 12 C 170 103 145

30 ---- 90 29 20 C ---- ---- ----

40 ---- 102 34 32 F ---- ---- ----

50 ---- 116 66 46 O ---- ---- ----

* 54 y/o male.

Static leg lift test

Static arm lift test

Horizontal validity lift test

Coefficient of Variance

Isometric/static lift testing has shown no relationship to dynamic lift capacity and the use of CV to classify effort level is not scientifically reliable.

Feeler, St. James, Schapmire. Isometric strength assessment, part 1: static testing does not accurately predict dynamic lifting capacity. Work. 37:301-308, 2010.

Townsend, Schapmire, St. James, Feeler. Isometric strength assessment, part II: static testing does not accurately classify validity of effort. Work. 37:387-394, 2010.


Maximum Voluntary Effort (Bell-shaped curve)

Rapid Exchange Grip

Stokes protocol

Coefficient of Variance

Hand grip strength testing and COV have shown to be invalid and unreliable for determination of effort level.

Sindhu, hechtman, Veazie. Identifying sincerity of effort based on the combined predictive ability of multiple grip strength tests. J Hand Ther. 25(3):308-318, 2012.

Shechtman. The coefficient of variation as a measure of sincerity of effort of grip strength, part II: sensitivity and specificity.J Hand Ther. 14(3):188-194, 2001.

Niebuhr, Marion. Voluntary control of submaximal grip strength. Am J Phys Med Rehab. 69(2):96-101, 1990.


20% or less variance when

compared to “similar” dynamic

lift test.

The lever arm has a fixed axis point of rotation.

This causes a forward displacement in the body’s

center of gravity as the load is raised. In contrast,

a box and most other objects being lifted in the

workplace do not have a fixed axis but allow for

freedom of the body’s center of gravity to move

the load. The biomechanics of lifting are not

identical as advertised.

Schapmire, St. James, Townsend, Feeler. Accuracy of visual estimation

in classifying effort during a lifting task. Work. 40:445-457, 2011.


Psychophysical monitoring

Biomechanical monitoring

Physiological monitoring

Use of all 3 methods by a qualified FCE examiner provides the most valid and reliable assessment of a claimant’s residual functional capacity.


√

√

√

Isometric/Static Strength Testing

Bell-Shaped Curve, Rapid Exchange Grip, Coefficient of Variance

XRTS Lever Arm and HG Testing

CAUTION: Do NOT rely on the above testing methods or “high tech” equipment to produce a reliable, valid, or usable FCE result.


If Effort is Good and Pain Behavior is Normal…..

› FCE examiner should consider Pain/Symptom reports and RPE in final RFC determinations.

If Effort is Good and Pain Behavior is Abnormal…..

› FCE examiner should disregard reliability of self-reported Pain/Symptoms and RPE in final RFC determination.

› However, FCE examiner should consider recommendation for Psych eval and treatment if necessary to compliment VocRehab and improve RTW prognosis.


If Effort is Poor and Pain Behavior is Normal…..

› Work Physiology Principles – Heart Rate Response

% Max Aerobic Capacity?

Age-Gender lifting norms.

› FCE examiner should consider Pain/Symptom reports and RPE in final RFC determinations.

If Effort is Poor and Pain Behavior is Abnormal…..

› Work Physiology Principles – Heart Rate Response (see above)

› FCE examiner should disregard reliability of self-reported Pain/Symptoms and RPE in final RFC determination.


The claimant was only willing to perform activities falling within a Light work level. While it is likely they can perform work activities classified at a higher physical demand level, their current safe maximal work level could not be established due to their failure to fully cooperate during the FCE.

Since the claimant invalidated their test results, their ability to participate in work related activities could not be determined.


An opinion about the claimant’s work level

whether the claimant’s test performance

was valid or invalid.

› Valid Performance

Objective evidence from functional testing

Objective evidence from physical exam

Objective evidence from medical records review

Symptoms + or –

› Invalid Performance

Same objective evidence as above with special

emphasis on

Work Physiology

Age-gender norms for material handling activities.



Results:

1. Effort

2. Pain Behavior

3. Work Level

C:\Users\steve.allison\Documents\FCE Example 1 - Hand Grip & Limited Work

Physiology.pdf

C:\Users\steve.allison\Documents\FCE Example 2 - XRTS - Work Phys-

Waddell's.pdf

C:\Users\steve.allison\Documents\FCE Example 4 - FCE Summary.pdf

C:\Users\steve.allison\Documents\FCE Example 4 - HPE.pdf

C:\Users\steve.allison\Documents\FCE Example 4 - FT.pdf


The Unfortunate Misuse & Abuse of

Waddell’s Signs


Large number of commercial FCE systems that purport to be able to

objectively identify individuals who provide INSINCERE or

UNRELIABLE effort during FCEs and who also demonstrate

NON-ORGANIC PHYSICAL SIGNS often referred to as

Waddell’s signs consistent with SYMPTOM EXAGGERATION.

Allison. Waddell’s signs: clearing up the misuse and abuse of non-

organic physical signs in FCEs. WC Magazine. Oct-Nov 2016.


Gordon Waddell, et. al. Nonorganic physical signs in low back

pain.

• Proposed non-organic physical signs were distinguishable from

“standard” clinical signs of physical pathology and correlated with

other psychological data.

• Suggested that non-organic signs be used as a simple clinical

screen to help identify patients who may require a more detailed

psychological assessment.


Waddell's Signs - Nonorganic Lumbar

Physical Signs Screening Test – YouTube

https://www.youtube.com/watch?v=vk-g3qtopDA


The use of Waddell’s signs in workers’ comp and personal injury

claims grew prolifically.

Many medical providers had little or no background in the original

development or proper interpretation of Waddell’s signs.

Many FCE examiners and physicians learned about Waddell’s signs

in a very short story format while attending continuing medical

education courses or from other peers.

Unfortunately, many of those individuals with legitimate injury

claims were mislabeled as symptom exaggerators or malingerers

based in large part on the inappropriate use and interpretation of

Waddell’s signs.


Waddell, et. al. Behavioral responses to examination: a reappraisal

of the interpretation of non-organic physical signs.

In this study, the authors noted the signs had been misinterpreted

and misused both clinically and medicolegally.

Further noted that the behavioral signs on their own were not a test

of credibility or faking, and the signs offered only a psychological

“yellow flag” to those patients who may require both management of

their physical pathologies and more careful management of the

psychosocial and behavior aspects of their illnesses.


Fishbain, et. al. A structured evidence-based review on the meaning

of non-organic physical signs: Waddell signs.

Review of 61 studies and case reports related to Waddell’s signs.

From this literature review, the authors reached the following

conclusions about Waddell’s signs:

1. Do not correlate with psychological distress.

2. Do not discriminate organic from non-organic problems.

3. May represent an organic phenomenon.

4. Are associated with poorer treatment outcomes.

5. Are associated with greater pain levels.

6. Are not associated with secondary gain.

7. Are some methodological problems with Waddell’s signs studied as a group.


Fishbain, et. al. Is there a relationship between non-organic physical

findings (Waddell’s signs) and secondary gain/malingering?

Review of 16 studies and case reports related to Waddell’s signs

and secondary gain or malingering From this literature review, the

authors concluded that:

The preponderance of evidence pointed to no association between

Waddell’s signs and secondary gain or malingering.


Ranney. A proposed neuroanatomical basis of Waddell’s non-

organic signs.

Ranney noted the use of the term “non-organic signs” suggested a

non-physical cause, such as psychological or sociological factors.

Provided a valid neuroanatomical basis to explain physical causes for

6 of the 8 original non-organic physical signs. The 2 signs not

explained were regional weakness and over-reaction.


1. Superficial tenderness – skin discomfort on light

palpation.

• CNS sensitization due to prolonged pain

stimulation resulting in physical changes in

the anatomical pain pathways at the spinal

cord level.


2. Nonanatomical tenderness – unrelated to

anatomical patterns.

• Pathological changes in pain pathways at the

spinal cord level.


3. Pain on axial loading: back pain with downward

pressure on the head.

• Pain in the neck with axial loading frequently

occurs with whiplash injuries. If an individual is

hypersensitive to pain and apprehensive, anxiety

may cause back muscle spasm and back pain.


4. Pain on simulated rotation: rotating shoulders

and pelvis together.

• Tricky maneuver. If sacroilitis is present in

an anxious person, pain can result due to fear

of movement based on bad experiences with

doctors.

• Stress on SI joint structures.


5. Distracted straight leg raise: pain when tested

supine, but not (or less so) when seated.

• One or both of these signs may represent

apprehension which potentiates pain.

• Lumbar spine posture is different in sitting

versus supine resulting in stress in different

structures (facets, disks, etc.) depending on

the posture.


6. Regional sensory changes: stocking like sensory

loss or sensory loss in an entire extremity or

side of the body.

• May be the result of changes in how pain

signals are processed.

• Scant research to support a basis for regional

sensory changes.


3 Major Psychophysical Signs on Physical Exam:

1. Cogwheel or catchy weakness

2. Widespread numbness/tingling

3. Inconsistent movement patterns

Abnormal Pain Behavior = Pain behavior that is not consistent with

objective medical evidence. Sometimes, but not always associated

with psychological conditions including depression, anxiety,

somatization, and less often malingering.


Job Descriptions as a Legal Basis for

Employment Decisions


Why have a job description?

• ADA requires all employers with 15 or more

employees to have a “listing” of job duties, skills, and

requirements for each position.

• Set minimum “cognitive” and physical qualification

standards.

• Proper job placement• New hires.

• Existing employees.

• Return to work……


How much is enough?

• Medium work.

• Must be able to lift 50 pounds.

• Must be able to stoop, squat, kneel, and climb.

• Must be able to use hands for manipulating objects.

Is this information helpful?

What can be done to improve the specificity of the

job demands so they can be more useful?


Basic rules of construction:

• Define activity duration or # reps.• Occasional (1-33%, 1-100 reps).

• Frequent (34-66%, 101-500 reps).

• Constant (67-100%, 501+ reps).

• Define vertical and horizontal distances.• Lifting, carrying, pushing, pulling.

• If activity is uninterrupted, define time.• Standing at a work station for up to 1 hour and 20 minutes

with no interruptions to walk or change postures.

• Delineate essential from marginal job functions.


On-site Job Analysis

• The most objective method for quantifying the physical

demands of a job.

• Time, distance, reps, force measurements.

• Pictures and/or videos.

• Relies on direct observation and interviews with

employees who perform the job, their supervisors,

safety, and human resources.

• Employees are considered the subject matter

experts. Their input is crucial for legal defensibility.


Do NOT rely on:

• Phone interviews with

supervisors, HR, etc.

• Check off forms completed by

supervisors, HR, etc.

• Outdated job descriptions.

• Generic job descriptions.


Essential job functions

The basic job duties that an

employee must be able to

perform, with or without

reasonable accommodation.

Marginal job functions

Extra or incidental duties


The EEOC recommends that

employers carefully examine

each job to determine which

functions are essential to

performance. This is

especially important prior

taking employment actions

such as return to work, job

transfer, or termination.


Key factors to consider in determining if a job

function is essential:

• Does the position exist to perform the function?

• What are the consequences of not performing the

function?

• How much time is spent performing the function?

• Are special skills or training required to perform the

function?


• Occupation specific as

opposed to job specific.

• Good basic starting point

for general job functions

and as a basis for typical

physical demands.


Sedentary 11% of occupations

Light 49.6% of occupations

Medium 29.6% of occupations

Heavy 9.1% of occupations

Very Heavy 0.7% of occupations


Climbing 18% of all occupations

Balancing 8% of all occupations

Stooping 36% of all occupations

Kneeling 16% of all occupations

Squatting 23% of all occupations

Crawling 5% of all occupations

Reaching 99% of all occupations

Handling 99% of all occupations

Fingering 85% of all occupations


Light Medium Heavy

Climbing 10% 7% 30%

Balancing 5% 12% 19%

Stooping 25% 56% 71%

Kneeling 32% 24% 32%

Squatting 3% 36% 49%

Crawling 2% 5% 7%

Reaching 99% 100% 100%

Handling 99% 100% 100%

Fingering 86% 91% 76%


1. Identify job functions.

2. Determine physical

demands required for

each job function.

3. Classify each job

function as essential or

marginal.

C:\Users\steve.allison\Documents\2018

Functional Job Analysis-SAMPLE.pdf

Employee’s

Physical

Capacity

Physical

Demands

Of Job


Workers’ Compensation and the

ADAAA: Must be full duty to return to

work leads to disability discrimination


• Jan 1, 2009, the ADA

Amendments Act

(ADAAA) became law.

• Broadened the definition

of “disability” making it

easier for individuals to

qualify for protections

under the ADA.


18108

17806

17007

15864

16470

15964

15337

15376

14893

15575

17734

19453

21451 2

5165

25742

26379

25957

25369

26968

28073

0

5000

10000

15000

20000

25000

30000

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

# C

laim

s

1997-2016 EEOC Disability Discrimination Claim Trends

https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm


22.4

0%

22.4

0%

22.0

0%

19.9

0%

20.4

0%

18.9

0%

18.9

0%

19.4

0%

19.7

0%

20.6

0%

21.4

0%

20.4

0%

23.0

0%

25.2

0%

25.8

0%

26.5

0%

27.7

0%

28.6

0%

30.2

0%

30.7

0%

0.00%

5.00%

10.00%

15.00%

20.00%

25.00%

30.00%

35.00%

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

% C

laim

s

1997-2016 EEOC Disability Discrimination Claim Trends



1997-2008

› Avg monetary benefits: $50.1 million

› Range monetary benefits: $41.3 (1997) to $57.2 (2008) million

2009-2016

› Avg monetary benefits: $101.9 million

› Range monetary benefits: $67.8 (2009) to $131.0 (2016) million

2017

› UPS – 2 million



1. A physical or mental

impairment that

substantially limits one or

more major life activities.

2. A record (or past history)

of such an impairment.

3. Being regarded as having

a disability.


ADA: The impairment prevents a person from performing a major life activity or significantly restricts the person’s ability to perform the activity as compared to the average person in the general population.

ADAAA: Requires a lower degree of functional limitation than the previous standard.

› Is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the term of the ADA.

› Requires an individualized assessment.

› Without regard to functional improvements from the use of mitigating measures such as medications or hearing aids.

› Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

https://www1.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm?rendorprint=1


Substantially limited in work means that the impairment interferes with the individual’s ability to perform either a “class or broad range of jobs in various classes” rather than a type of work.

A class of work may be determined by reference to the nature of the work (commercial truck driving) or by reference to job-related requirements that an individual is limited in meeting (prolonged standing, repetitive use of hands).

An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”

https://www1.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm?renderorprint=1


1. Caring for oneself.

2. Performing manual tasks.

3. Seeing.

4. Hearing.

5. Eating.

6. Sleeping.

7. Walking.

8. Standing.

9. Lifting.

10. Bending.

11. Working.

12. Etc……

https://www.eeoc.gov/laws/statutes/adaaa.cfm


If the individual was subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limited or was perceived to limit a major life activity.

Does not apply to impairments that are transitory and minor.› Actual or expected duration of 6

months or less.



Under the ADAAA, the focus for establishing coverage is how a person was treated because of a physical or mental impairment (that is not transitory or minor) rather than on what an employer may have believed about the nature of the person’s impairment.

https://www1.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm?renderforprint=1


An employee has a work-related injury

that has resulted in a temporary back

impairment that does not substantially

limit a major life activity. However, the

employer views him as not being able to

lift more than light weight and refuses to

return him to his position. The employer

regards him as having an impairment that

substantially limits the major life activity

of lifting. The employee has a disability

as defined by the ADA.

https://www.eeoc.gov/policy/docs/workcomp.html


An employer refuses to allow an

employee to return to his position

because of a facial scar that resulted from

a work-related accident. The employer

fears negative reactions by co-workers or

customers. The employer regards him

as having an impairment that

substantially limits the major life activities

of interacting with others and working.

The employee has a disability as defined

by the ADA.

https://www.eeoc.gov/policy/docs/workcomp.htm


The duty to provide reasonable accommodation is a fundamental statutory requirement because of the nature of discrimination faced by individuals with disabilities.

› Making existing facilities accessible.

› Job restructuring.

› Part-time or modified work schedules.

› Acquiring or modifying equipment.

› Changing tests, training materials, or policies.

› Providing qualified readers or interpreters.

› Reassignment to a vacant position.

https://www.eeoc.gov/policy/docs/accommodation.html#general


Employers are required by the ADA to provide reasonable accommodation not only for job applicants with disabilities but also for existing workers with disabilities (including injured workers’ receiving workers’ compensation benefits) unless it can be factually shown that doing so would cause an undue hardship for the employer.



YES, much more often than

not……..

1. EEOC Enforcement Guidance:

Workers’ Compensation and the

ADA

2. Employers Must Begin Interactive

Process for Return to Work

Sooner Than Thought


The passage of the ADAAA in 2009 broadened

the definition for disability making it easier for

individuals to qualify for disability protections.

Yes, if:

The work injury is severe enough to result in a

substantial limitation with a major life activity.

• Permanent work restrictions.


Any condition serious enough to require medical

restrictions/limitations for more than a few days or

weeks are likely to meet the definition of an ADA

disability.


No…..

The term “full duty” may include marginal as well

as essential job functions or may mean

performing job functions without any

accommodation.


An employer may NOT require a employee with

a disability to return to work full duty to:

• Perform marginal functions of the position, or

• Perform essential functions without consideration for

reasonable accommodation.


Yes…

An employer must provide the employee with

reasonable accommodation as long as it does not

impose an undue hardship.


As soon as the employer is informed that a worker

has medical restrictions/limitations due to a work-

relate condition.

The employer should immediately engage the

worker in an interactive process to look for a

reasonable accommodation under the ADA.


• As soon as the employer is informed that

a worker has medical

restrictions/limitations due to a work-

related condition.

• The employer should immediately

engage the worker in an interactive

process to look for a reasonable

accommodation under the ADA.

http://blog.reduceyourworkerscomp.com/2014/12/eeoc-speaks-out-on-workers-

compensation-ada-

obligations/?utm_source=December+16%2C+2014%3A+EEOC+Speaks+Out+on+AD

A+Obligation+Changes+in+Work+Comp&utm_campaign=12.17.14%3A+EEOC+Spea

ks+Out+on+ADA+Obligations+in+Work+Comp&utm_medium=email


Whether or not the worker’s condition is stable

and has reached maximum medical improvement

(MMI) has no relevance either to:

1. The time when the employer’ obligation to engage in

the interactive process begins, or…

2. The time when a worker should be considered a

qualified individual with a disability under the ADA.


Kowitz vs. Trinity Health Corp. Following neck surgery for cervical spinal

stenosis, a respiratory therapist had returned to work with the restriction of a reduced work schedule. She notified her employer (Trinity Health) that she would not be able to complete the physical portion of her CPR certification by the mandated deadline because she had not obtained medical clearance from her treating orthopedist who had ordered 4 additional months of physical therapy.

Trinity Health subsequently terminated Kowitzfor her inability to perform basis life support which was an essential job function.

https://www.eeoc.gov/eeoc/newsroom/release/12-20-12.cfm


Kowitz vs. Trinity Health Corp. Federal appeals court issued a reminder

to all employers regarding disabled employees’ requests for reasonable accommodation.

› An employee does not have to specifically request that an employer provide an accommodation.

› An “implied” request “work restrictions” is sufficient to trigger an employer’s obligation to engage in the interactive process with the employee.

https://blog.eplaceinc.com/epl/archives/tag/kowitz-v-trinity-health


Camp vs. Bio, LLC 38 year veteran employee working as

stock clerk for a grocery store. History of scoliosis since a teenager, but had worked with this “bad back” without incident. On one occasion, Camp’s 3 person team didn’t finish putting out all the stock. The store director found out from one of the team members about Mr. Camp’s bad back which had slowed the team down.

http://law.justia.com/cases/federal/appellate-courts/ca6/16-5080/16-5080-2016-10-21.html


Camp vs. Bio, LLC HR Director gave Mr. Camp the stock

clerk job description and a “physical capabilities testing sheet” for it to be completed by a physician.

Job description had been created 5 years prior to the incident and more than 30 years after Camp’s employment.

Job description listed requirements of lifting 20 pounds constantly and 20 to 60 pounds frequently.



Camp vs. Bio, LLC Doctor concluded Camp could lift

20 pounds frequently and 10 pounds constantly, with a maximum lift of up to 35 pounds.

Bi-Lo forced Camp to take a leave of absence.

Camp attempted to RTW, but Bi-Lowould not allow him to RTW until he had been medically cleared to lift 60 pounds as required by the job description.



Camp vs. Bio, LLC Camp subsequently requested an

accommodation that would allow him to return to work under the same arrangement as before where his two coworkers lifted the heaviest stock.

Bi-Lo denied Camp’s request for accommodation.

Appeals Court found for Camp.



Camp vs. Bio, LLC Bi-Lo made 3 critical

mistakes:

› Relied on a vague and invalid job description.

› Relied on guesstimated vs actual work abilities.

› Failed to consider reasonable accommodation.



Consider every WC claim

a potential ADA claim.

Validate Job descriptions.

› Listing of physical demands

linked to essential job

functions.

Review and update annually.


Engage the injured worker in an interactive process for safe return to work options.

Don’t take the position of “must be full-duty to return to work.”

Don’t accept “no work” from the treating doctor.


A restricted-duty policy that provides for

an individualized assessment of the injured

worker’s unique circumstances is more

appropriate than a one-size fits all blanket

policy for a time limit to return to work.

Content valid functional testing provides

critical evidence regarding an injured

worker’s ability to safely perform the

physical demands of the essential functions

with or without reasonable

accommodation.

2018 ABVE Conference Bibliography: Advanced Concepts in FCEs, Job Analysis, WC and the ADAAA Page 1 of 4

FUNCTIONAL CAPACITY EXPERTS, LLC 1611 Jimmie Davis Hwy.

Suite C Bossier City, Louisiana 71112 318-658-9950 Phone 318-658-9951 Fax www.functionalcapacityexperts.com

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https://www.eeoc.gov/eeoc/newsroom/release/12-20-12.cfm

https://blog.eplaceinc.com/epl/archives/tag/kowitz-v-trinity-health



https://www.eeoc.gov/eeoc/newsroom/index.cfm

https://www1.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm?renderorprint=1