Saturday, March 19, 2011

Functional Capacity Evaluations, (FCE) Reports

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.

Thursday, March 17, 2011

Field Nurse

Today, I want to talk about what it means when a field nurse is assigned to your case. I've heard from a lot of claimant's how a field nurse seems to march in and take over as if they're the new boss. I've heard horror stories of Privacy Act violations and intimidation. The field nurse may tell you that you and your physician's have to do what they say and/or ask...or else...but this is not true. Unlike Vocational Rehabilitation where you must cooperate, your cooperation with the field nurse intervention program is voluntary.

Once the field nurse is assigned to you, you can track any payments made to the nurse from OWCP on the billing page of the ACS site if you want. You can find the ACS site on the "Links" page.

The field nurse will likely provide you with some sort of consent or release form. Most of these releases are so broad, they can entitle the nurse to your medical records from birth and are not specific only to your OWCP claims. I've seen some that even release financial information as well. I can't think of anyone who wants to sign something like that.

If  your field nurse supplies you with a release to sign and you find the release the nurse gives you too broad, you can type up a release of your own. Your release can limit the nurse to medical documents that pertain ONLY to your OWCP case. You can name specific physician's who have permission to release your records. You can put time limits on the release. The field nurse is assigned to your case for 120 days from the date of OWCP's referral. The CE may authorize an additional 30 days if need be. So your release should expire 150 days from the date of your referral. I've put an example of a release on the "How To" page. If your field nurse doesn't like it, too bad. You've provided a release for the records that pertain to your OWCP claim, which is all the nurse should be interested in.

I also suggest you type something up for your physician(s) that states no medical records are to be released without your express written permission. You should also explain to your physician(s) that s/he does not have to speak to the nurse or allow the nurse into the exam room without your permission. Doctor patient confidentiality applies when dealing with an OWCP field nurse unless you provide a signed release. If your doctor is the nervous type, explain that although the nurse may appear to be in charge, it is in fact the physician that still calls the shots in his own office.

I suggest you bring a tape recorder to any meeting with the field nurse. That way there's no confusion later as to who said what and you have documentation should the nurse's report state the events other than they actually happened. You will not automatically receive copies of your field nurse's reports, but you can get them by requesting copies of your file (see the "How To" page).

In a September 2010 case appealed to the ECAB; http://www.dol.gov/ecab/decisions/2010/Sep/10-0485.htm the Office reduced the claimant's compensation to zero for failure to cooperate with field nurse services. The Board stated the role of the Office filed nurse, as described in its procedures, is to attempt to "identify light or limited duty for the claimant" at the employing establishment, with the goal of reemlpoyment in the previous position.

The Office's procedures contemplate that such activities do not constitute vocational rehabilitation, but may result in a referral to a vocational rehabilitation specialist for a formal vocational rehabilitation plan.

The Board concluded that the claimant's failure to return a consent form did not impede efforts toward job placement, but delayed the field nurse's ability to communicate with claimant's physician. The Board reversed the Office's decision.

In the appeal of http://www.dol.gov/ecab/decisions/2006/Dec/06-0777.htm the Office advised the claimant that she had been assigned a case management nurse. The nurse was assigned to monitor claimant's medical status and progress, assist in coordinating the medical aspects of her care and facilitating the flow of information concerning her treatment.

The Board noted there was no referral for vocational rehabilitation, but a referral for nurse intervention to work with claimant on medical management to facilitate her return to work. The Board found that the field nurse's activities were limited to the role set forth in Office procedures, i.e., of attempting to return claimant to work and providing medical management services, a preliminary reemployment effort.

The Board determined this did not constitute non-cooperation with vocational rehabilitation and the Office did not meet its burden to suspend claimant's compensation. The Board reversed the Office's decision.

Another very similar case can be found at: http://www.dol.gov/ecab/decisions/2008/Jun/08-0528.htm

As with any other medical personnel assigned by OWCP, research the nurse. Does s/he have a valid certification? Are there any ECAB decisions regarding the nurse? Any red flags?

Information on field nurses can be found in the FECA Manuals at;

Part 2 at 2-600-8
Part 2 at 2-0811
Part 3 at 3-0201-3
Part 3 at 3-0201-7
Part 3 at 3-0202-1

You can find parts one and two of the FECA Manuals on the "Links" page.

Tuesday, March 15, 2011

You Are Not Alone

There's no doubt in my mind that the entire OWCP system is designed against claimant's and not for them. It's almost comical that they consider the system non-adversarial. I say almost because it's not funny to claimant's that have to live through OWCP's antics and games while injured and in pain.

It's not enough that the injured worker takes flack from fellow employees, their supervisors, their HR department, but they also have to take it from OWCP simply because they went to work and got injured. Sooner or later most claimant's find themselves wanting to give up just to be free of the system. This is exactly what OWCP wants you to do; give up your rights to the benefits you're entitled to.

All injured workers have to accept that their lives may no longer be the same, that they will forever face medical issues and pain due to their employment related injuries. This is not easy to accept and is made harder by being constantly bullied by the system that's supposed to help you. Although it may feel like it, you are not alone. There are tens of thousands, maybe hundreds of thousands of injured employees in exactly the same boat.

OWCP relies on your fear. At some point, every claimant feels it. The fear comes from the unknown. Not knowing how or what to do when it comes to your OWCP claim. Hopefully, this site will teach claimant's how to deal with their claims and how to navigate the system. For every action OWCP takes, there is a counter action a claimant can take.

I want to teach you to fight. I want you to realize that there are ways to get around the OWCP bullies and their decisions. I want you to realize that you are not alone and there are people out here who understand what you're going through and want to help you but you must stay in the fight. The best way I can put it is...Never give up...Never surrender.

Monday, March 14, 2011

Second Opinion Examination

Any claimant who has been on OWCP for any length of time, will sooner or later be sent to an OWCP scheduled examination. You must attend any examination OWCP schedules or your benefits will be suspended until you do.

On the day you receive the notice of the scheduled exam, you should write your CE and request the following items:

1. Your Statement of Accepted Facts, (SOAF);
2. The list of questions the CE is sending to the physician; and
3. The physician's Curriculum Vitae

You should also include a paragraph requesting a copy of the physician's report once it is received by OWCP.

Why are these things important?

Your SOAF is just that, a statement of the facts OWCP has accepted in your case. Whenever OWCP sends you to an exam or sends your file to the District Medical Advisor, (DMA) your CE must complete an SOAF for the doctor. The doctor in turn must rely on the information contained in your SOAF. If your SOAF is inaccurate or incomplete, you have the basis of an appeal, should it come to that. See the FECA Manual part 2 at 2-0809 for information regarding SOAF's and their requirements. You can find the FECA Manuals on the "LINKS" page.

The list of questions to the physician is to answer certain questions OWCP has in your case. However, the questions to the physician cannot be leading questions. In other words, the questions can't be phrased in such a way as to lead the physician to the answer. See the "Useful Stuff" page for some ECAB decisions regarding leading questions.

The Curriculum Vitae is a physician's resume. This can be helpful for information about the physician.

The next thing you should do when you receive your scheduled exam notice is to research the physician you're being sent to see. Often OWCP uses the same physician's over and over again. The physician's are paid better by OWCP than through the private sector and many physician's take advantage of this, especially older physician's. Also, a lot of OWCP's physicians also work as State work comp and Social Security examiners as well.

OWCP cannot send you to a physician who has the appearence of bias toward claimants. Check the "LINKS" page for ECAB decisions by topic and search the site for the physician. Read the decisions and see how the physician writes his/her reports. Do they consistently find in favor of OWCP and against claimants?

Do a basic Google search on the physician, what comes up? Does the physician have a current license for your State? The more skeletons in the physician's closet, the better.

Now let's say that you do find skeletons in the physician's closet, what should you do? The first question you have to ask yourself, is what did you find? If you found that the physician OWCP selected for you is regularly involved in law suits, Social Security claims or State work comp claims, you must find information that pertains to OWCP as well. Although the OWCP and/or the ECAB has to consider outside information, they do not have to agree with it. The ECAB decision web site is the best place to tie the physician to the OWCP.

OWCP also cannot send you to the same doctor or a doctor you've already seen for your injuries.

If, after researching the physician, you think the doctor may appear to be biased against you, you must alert OWCP PRIOR to your appointment. But let's say that your SOAF is also inaccurate, my personal opinion is NOT to alert OWCP to this fact. Wait for the physician's report, if it goes against you, then use the inaccurate SOAF. If the report is in your favor, you say nothing to OWCP about the SOAF. This way, next time you're sent to an OWCP scheduled exam, even if they update your SOAF, they probably won't correct it and you have the inaccurate SOAF in your bag of weapons for later.

I highly recommend every claimant take a tape recorder to any OWCP scheduled event (except on Federal property). The physician may protest, but stand your ground. Then you have a recording of exactly what was said during your appointment and if the facts come out different later, you have proof.

Most of what claimant's have to do involves preparing for future battles and/or appeals. These things are much easier if you gather your weapons as you go rather than trying to fight after the fact.

One last thing about OWCP scheduled medical exams. You are allowed to file a complaint of your own with OWCP and you can also file a complaint with your State's medical board if need be. The information you find during your research, how you're treated by the physician and your report would determine your decision on whether or not to file complaints.

Welcome to the Classroom

The Office of Workers' Compensation Programs or OWCP is unknown to most Federal employees, until they're hurt on the job and once an employee is thrown into the machine known as the OWCP, their life forever changes.

It's not enough that the employee is injured and trying to cope with the reality of being injured, sometimes for the rest of their lives, but to then be subjected to the OWCP's rules and requirements the runaround and misinformation is adding insult to injury...literally.

The attempt here is to educate claimant's in the ways of the OWCP and give real examples and clear cut information. To ease the fear and frustration of having to deal with a complicated and exhausting system without the knowledge of how to do so all while dealing with pain and injuries.

Claimant's have to be their own advocates. OWCP and your Agency is not going to help you. You must help yourself to receive the benefits you're entitled to.

If you haven't already done so, you should request a copy of your file from OWCP. Go to "Letter Templates" for an example of how to request a copy of your file. Once you receive your file, go through it carefully.

Feel free to ask questions or post requests for information.