New Jersey Workers’ Compensation Claims: Increasing Use of Functional Capacity Evaluations

By Gary E. Adams

In the past few years, the use of Functional Capacity Evaluations (FCE) has become increasingly common in New Jersey Workers’ Compensation matters. The studies are being ordered by workers’ compensation carriers as well as the physicians used by the workers’ compensation carriers to provide treatment to injured workers.  The manner in which these tests are currently being used can be a significant concern for the injured worker.

Functional Capacity Evaluations are tests designed to measure the work capacity of the person being tested.  These tests are performed by a physical therapist, usually in conjunction with a computer program designed to analyze the results of the test.  The person being tested is asked to perform various physical maneuvers involving lifting, bending, reaching and walking.  The results of the test are interpreted using a computer program, which then sets forth the physical capacity of the individual to perform sedentary, light, medium or heavy duty work. The tests are physically demanding, and can take three to four hours or longer to complete.

Ideally, these tests can be used to measure an injured worker’s readiness to return to the work force after an absence due to a work-related injury, so that an accommodation can be made to allow the injured worker to return to work in a limited capacity. Unfortunately, the reality can be quite different.

In many cases, FCEs are used by employers as a basis to terminate the employee after an injury.  These tests frequently indicate that an injured worker does not have the physical capacity to return to his or her regular job.  The employer then has a basis to terminate the employee as not being fit for duty.  Many employers have a no “light duty” policy, and insist that the employee returning to work after an injury return to their regular jobs without restrictions. An FCE indicating that the worker is not yet ready to perform full duty is then used as a basis to terminate employment.

FCEs in workers’ compensation matters are arranged and paid for by the workers’ compensation carrier.  The companies who perform these tests generate a substantial amount of revenue for performing them.  Not surprisingly, the tests frequently display a pro-employer bias.  It is not unusual for the reports to indicate that the injured worked failed to fully cooperate with the testing.  Workers will report that despite giving their best efforts, they were unable to perform certain parts of the test due their injuries.  This is frequently reported as non-cooperation by the worker, implying that the injured person is magnifying their symptoms.

In many situations, workers’ compensation carriers order FCE studies too soon.  It is inherently unfair for the injured worker to be tested for his or her ability to perform the physical aspects of his or her job when they are still recovering from the effects of their injury.  Yet in many cases, the FCE is ordered as soon as three weeks after the accident takes place.

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