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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.
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How Do You Know if the Injured Worker
Gave their Best Effort During a FCE?
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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.
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“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.
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“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.
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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?
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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.
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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.
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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.
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2 types:
Job/Occupation Specific FCE
Any Occupation FCE
Proposed Revision to APTA FCE Guidelines, 2018.
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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.
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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.
Proposed Revision to APTA FCE Guidelines, 2018.
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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
Proposed Revision to APTA FCE Guidelines, 2018.
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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
Proposed Revision to APTA FCE Guidelines, 2018.
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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.
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Psychophysical monitoring.
Biomechanical monitoring.
Physiological monitoring.
Isometric/Static Strength testing.
Hand Grip Strength testing.
XRTS Lever Arm testing.Copyright© Functional Capacity Experts, LLC 17
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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The Unfortunate Misuse & Abuse of
Waddell’s Signs
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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.
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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.
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Waddell's Signs - Nonorganic Lumbar
Physical Signs Screening Test – YouTube
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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.
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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.
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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.
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Copyright© Functional Capacity Experts, LLC 43
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.
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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.
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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.
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2. Nonanatomical tenderness – unrelated to
anatomical patterns.
• Pathological changes in pain pathways at the
spinal cord level.
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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.
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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.
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Copyright© Functional Capacity Experts, LLC 49
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.
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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.
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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.
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Copyright© Functional Capacity Experts, LLC 53
Job Descriptions as a Legal Basis for
Employment Decisions
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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……
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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?
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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.
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Copyright© Functional Capacity Experts, LLC 57
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.
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Copyright© Functional Capacity Experts, LLC 58
Do NOT rely on:
• Phone interviews with
supervisors, HR, etc.
• Check off forms completed by
supervisors, HR, etc.
• Outdated job descriptions.
• Generic job descriptions.
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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
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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.
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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?
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Copyright© Functional Capacity Experts, LLC 62
• Occupation specific as
opposed to job specific.
• Good basic starting point
for general job functions
and as a basis for typical
physical demands.
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Copyright© Functional Capacity Experts, LLC 63
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
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Copyright© Functional Capacity Experts, LLC 64
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
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Copyright© Functional Capacity Experts, LLC 65
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%
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Copyright© Functional Capacity Experts, LLC 66
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
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Copyright© Functional Capacity Experts, LLC 67
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Workers’ Compensation and the
ADAAA: Must be full duty to return to
work leads to disability discrimination
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• 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.
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Copyright© Functional Capacity Experts, LLC 70
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
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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
https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm
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Copyright© Functional Capacity Experts, LLC 72
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
https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm
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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.
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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
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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
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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
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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.
https://www.eeoc.gov/laws/statutes/adaaa.cfm
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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
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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
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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
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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
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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.
https://www.eeoc.gov/policy/docs/accommodation.html#general
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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
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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.
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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.
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No…..
The term “full duty” may include marginal as well
as essential job functions or may mean
performing job functions without any
accommodation.
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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.
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Yes…
An employer must provide the employee with
reasonable accommodation as long as it does not
impose an undue hardship.
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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.
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• 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
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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.
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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
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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
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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
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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.
http://law.justia.com/cases/federal/appellate-courts/ca6/16-5080/16-5080-2016-10-21.html
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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.
http://law.justia.com/cases/federal/appellate-courts/ca6/16-5080/16-5080-2016-10-21.html
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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.
http://law.justia.com/cases/federal/appellate-courts/ca6/16-5080/16-5080-2016-10-21.html
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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.
http://law.justia.com/cases/federal/appellate-courts/ca6/16-5080/16-5080-2016-10-21.html
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Consider every WC claim
a potential ADA claim.
Validate Job descriptions.
› Listing of physical demands
linked to essential job
functions.
Review and update annually.
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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.
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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.
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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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