You may have been instructed to attend an OWCP-directed FCE that resulted in a report that is less than favorable and now you're wondering what you can do. FCE's are becoming a common negative piece of medical evidence among OWCP claimants. As each FCE is different, each evaluator is different and each claim is different, not all the information contained here may apply to your case.
First, as with every OWCP medical report, check it for accuracy. Are the names, dates, places, etc...accurate according to the facts of your claim? Did OWCP provide medical documents for the evaluator? Were those documents reviewed and reported on? Was a physical examination performed? If so, what are the evaluators qualifications for making such an exam? If no physical examination was performed, why not? The fact that no physical exam was performed should be mentioned in your arguments.
Research the evaluator and the facility where the FCE took place. Does the evaluator have a valid license? Are there any complaints on file? Request the Curriculum Vitae or Resume of the evaluator, as the qualifications of the evaluator are important, what exactly ARE the evaluators' qualifications? State practice Acts regulate the practice of some evaluators, such as physical therapists, who must practice within the rules and regulations specified by the State in which they practice. These rules and regulations can be found at the Physical Therapy Board of your State.
The American Physical Therapy Association, (APTA) also has information regarding FCE's. You can find that information at: http://www.apta.org/search.aspx?q=functionalcapacityevaluation
You can attack the FCE from a scientific standpoint. There is little scientific evidence to support an FCE is definitive objective proof of an individuals physical capacity.
For more information on scientific research of FCE's, this site gives citings and basic information on the research of FCE's: http://www.workerrehab.com/download/job_related_FCEs
The OWCP uses the AMA Guides to Permanent Impairment (6th edition) to rate a claimant's schedule award. The AMA Guides also publishes a book entitled; "Guide to the Evaluation of Functional Ability, How to Request, Interpret, and Apply Functional Capacity Evaluations". This book basically concludes there is no universally agreed-on standardized methods for collecting, analyzing, and reporting the data regarding FCE's. A claimant could argue since OWCP exclusively uses the Guides for schedule awards, it would be contrary to disregard the opinions of The Guide on Functional Ability. However, as with other AMA books, it is expensive, so if you want to read it and can find it at a library, you should.
The Guide on Functional Ability indicates it is mandatory for the evaluator to provide all the raw data used as the basis for their conclusions and not just a final report. This raw data should be requested from the CE if it is not included with your report and should be provided to your physician for his/her opinion.
The Guide on Functional Ability indicates an FCE is limited by the lack of standardization in terminology, test length and components, determination of material handling, determination of movement and positional tolerance ability, level of effort, testing report format, evaluator qualifications and how to handle the evaluations of individuals with pain or fatigue. All these limitations contribute to the low predictive validity in addressing outcomes such as the ability to perform specific job functions, especially on a sustained basis, risk of injury or re-injury and the ability to return to work.
The U.S. Courts have also discounted FCE's, in Stup v. Unum Life Ins. Co. Of America, 390 F.3d 301 (4th Cir., 2004) http://caselaw.findlaw.com/us-4th-circuit/1059603.html the Physical Therapist concluded Stup could perform sedentary work, but cautioned the FCE may not be indicative of Stup's functional abilities due to inconsistencies during the FCE testing. Nevertheless, Unum concluded the FCE was thorough, valid and unequivocal and benefits were denied.
The Court however, concluded a two and a half hour FCE did not necessarily indicate Stup's ability to perform sedentary work during an eight hour or even four hour work day five days per week. That even if the FCE results showed Stup could perform sedentary tasks for the duration of the FCE, the results provided no evidence of Stup's abilities for longer periods.
See also: Dorsey v. Provident 167 F. Supp. 2d 846 (E.D. Pa. 2001) http://www.paed.uscourts.gov/documents/opinions/01D0776P.pdf where the court deemed the FCE of highly questionable validity in determining whether a fibromyalgia patient is disabled.
The OWCP and/or ECAB do not have to rely on the conclusions of other Agencies or Courts, however in combination with ECAB citings and other pertinent information, Court decisions make your arguments stronger.
If your FCE was performed by a Physical Therapist and is not signed by a physician, then your results are not valid as a Physical Therapist is not a physician under the Act. See the "Useful Stuff" page under Functional Capacity Evaluations for ECAB decisions regarding FCE's that can also be used to argue against your FCE.
In certain circumstances, the FCE may also have legal doubts. FCE's often last less than a day, some only several hours. The information gathered during this short period of time is then expected to predict an individuals physical capacity over a greater period of time. The validity of the FCE could be challenged based on the length of your evaluation. If your FCE lasts only a few hours, you could argue the test results do not necessarily indicate your ability to perform sustained work for eight, or even four hours per day, five days per week. If your FCE takes place on only one day, it may fail to adequately appreciate a medical condition that fluctuates or flares-up over time, or a patient who experiences good days or bad days.
If it is missing from your FCE report, you could argue the FCE results did not take into account the impact of pain or pain medications on the ability to concentrate, balance, dizziness or other medication side effects you might experience.
Are the aspects of your FCE properly measured?; the impact of pain on attention and concentration, particularly where the relevant job is highly skilled, impaired bilateral manual dexterity (as this is often not tested on FCE's), and inability to sustain physical capacities over the course of a full work day or work week.
Your treating physician's opinions regarding your specific medical conditions and FCE results, given in a proper narrative is, as always, important. Any inconsistencies or contradictions included in the FCE should be discussed or at the very least, listed by your physician. The length of time your physician has been treating you and number of examinations your physician and other physicians have performed should be mentioned in comparison to a one time FCE especially if it is evaluated by a Physical Therapist. Any test results, such as MRI's or EMG's that contridict the conclusions of the FCE should be included. I would also suggest a factual statement from the claimant describing good days and bad days and the side effects of any medications being taken.
Read your report over and over again and then read it some more. When you think you've read it enough, read it again and then again after that. By reading it over and over it becomes familiar and you will notice contradictions more. For instance, in the beginning of your report, maybe it states the test isn't valid but at the end of your report it states the validity criteria was not applied. This would be a contradiction. The report may state medical records were reviewed, but you know no medical records were supplied or the report doesn't list what medical records were reviewed, this is a contradiction.
Are there contradictions of the conclusions of the report and the actual individual test results? The FCE may determine you can lift a certain weight for a specific period of time throughout the day, but the lifting results during the FCE do not support this conclusion. In other words, the conclusion that you can lift throughout the day is contradicted by the fact that you were limited in your lifting ability during the FCE. The FCE may conclude you have good manual dexterity, yet the test results indicate findings of impaired dexterity or no manual dexterity testing was completed.
Contradictions in any OWCP-directed medical report are a claimant's best weapons and I've never read an OWCP medical report that didn't have contradictions.
Depending on the length of your FCE and the qualifications of your evaluator, these 'flaws' are the tools to make the one time FCE results less probative than the evidence provided by a physician who has examined and treated the claimant on numerous occasions and can work to reverse a negative decision by the OWCP.