Nine Lessons and Suggestions for Practice for Functional Capacity Evaluators

Indergard v. Georgia-Pacific Corporation

By Roy O. Matheson

In the recent 2010 Matheson workshop catalog I wrote,

The headline screamed, ‘EEOC Says No OT or PT in FCE’. Without even reading the article, I knew this headline would pave the way for change, despite its sensationalism and inaccuracy. At that very moment, I sensed an opportunity, as well as a major wake-up call, for the industry.

I went on to conclude with these words:

Indergard v. Georgia-Pacific serves as a wonderful learning tool for professional work evaluators who perform ‘functional capacity evaluation’ (FCE). This 9th

Circuit Court of Appeals case illustrates how the federal legal system works in the United States – highlighting the weaknesses in the Americans With Disabilities Act, which is clearly flawed despite good intentions. And, it also surfaces the weaknesses in how the FCE is performed differently in various states.

The informal review of Indergard presented in this paper is intended to address concerns shared by many experienced work evaluators. Included herein are lessons and suggestions that Thinking Evaluators may want to consider.

Please keep in mind that the thoughts and reflections in this document are not intended to be legal advice.

Lesson One

Thinking Evaluators should not only be well-trained in FCE, but must take time to read actual court cases instead of relying on the media’s spin on them. For your consideration, a copy of Indergard v. Georgia-Pacific has been uploaded to the website.

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Lesson Two

The Thinking Evaluator, and the referral source, must be cognizant of where the client is in the employment process. Because the appellant in this case was an incumbent, the ADA (and the subsequent ADAA) concept of medical inquiry comes to the forefront. This should cause the referrer and the Thinking Evaluator to proceed from an informed point of reference.

When dealing with an individual who is seeking or is returning to employment in a specific job, it is imperative that the evaluator be aware of which of the three phases of employment apply:

A. “Phase One” consists of applying for a new position. This also includes applying for a new position with the current employer.

B. “Phase Two” includes applying for a new position that resides under a Post-Offer covenant. This includes a current employee transferring into the target position.

C. “Phase Three” covers the worker holding or returning to a position in which he/she would be considered an incumbent.

Lesson Three

The evaluator should obtain an “Authorization for Evaluation” from the incumbent.

An “Authorization for Evaluation” is not the same as “Consent to Evaluate”. Consent gives permission to do something one can already do legally; an Authorization gives one permission to do something that he/she may not legally be able to do prior to permission being given.

Lesson Four

During the Intake Interview and again at the beginning of the printed report, introduce the test as being framed within the Hierarchy of Industrial Rehabilitation – where Safety is the highest priority, where the goal is to evaluate and document the client’s work abilities and where the metric used as comparison will be the physical demands associated with the essential functions of the target job.

Explain that, in order to ensure Safety, the worker’s response to activity will be measured, observed and recorded. Stating that the test would be stopped by the evaluator if threats to the well being of the worker are observed will further lay the foundation for the necessity to monitor signs of end-point of activity in the worker.

Crucial to an understanding of the evaluator’s plan are the referral questions. If one of the questions was, “Can Ms. Indergard safely return to work as a Consumer Napkin Operator or as a Napkin Adjuster?” the stage would be set to call out the Practice Hierarchy.

The Practice Hierarchy demands that we evaluate based on Safety, Reliability, Validity, Practicality and Utility, in that order. The evaluator crosses each boundary only when fully satisfied that he/she has met the requirement at each previous level. In Indergard the question is raised as to whether monitoring or observing blood pressure, resting pulse, gait and posture make this a medical inquiry. Indeed, the evaluation fits the definition of a medical inquiry due to these activities, but the evaluator’s first duty is to the Safety of the individual being tested: the

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Thinking Evaluator cannot abandon Safety to make his/her protocol fit within the definition of a medical inquiry.

Regarding the medical inquiry prong of this case, in his dissent Judge O’Scannlain wrote:

The essential distinction between a medical examination and a physical fitness or agility test, for the purposes of the Americans with Disabilities Act (“ADA”), is that the former is designed to reveal disability, while the latter is designed to determine whether an employee can perform her job. (Emphasis added by Roy Matheson). I cannot conclude that the evaluation Kris Indergard underwent on her return to work at Georgia-Pacific was a medical examination under 42 U.S.C. § 12112(d)(4)(A), for it was not designed to reveal disability. Furthermore, even assuming that there were any “medical” aspects of the physical capacity evaluation (“PCE”), they were merely incidental to the physical agility aspects and did not in any way cause the harms that Indergard alleges. Therefore, I must respectfully dissent.

I

Indergard characterizes the PCE as “two days of testing, poking, palpating, and examining.” However, over the course of those two days, no blood was drawn, no urine samples collected, no labwork performed, and no x-rays or scans taken. No doctor or nurse ever examined, diagnosed, or treated her. Instead, she went to an occupational therapy facility and performed various physical tasks designed to determine whether she could safely perform the duties of her old job. Such testing was unquestionably advisable given her own physician’s permanent restrictions on climbing, kneeling, squatting, crawling, and lifting over thirty pounds. A common-sense reading of the term “medical examination” would not include this PCE.

Unfortunately, common sense plays no role in our ADA jurisprudence. Instead, the EEOC has muddied the jurisprudential waters by issuing “guidances” that appear to read the word “medical” right out of the statute. For example, the interpretive appendix to 29 C.F.R. § 1630.14(a) first states that “[p]hysical agility tests are not medical examinations” but then adds that “[i]f such tests screen out or tend to screen out individuals with disabilities, the employer would have to demonstrate that the test is job-related and consistent with business necessity . . ..” Apparently, having a tendency to screen out disabled individuals automatically converts a physical agility test into a medical examination subject to the ADA. Given that physical agility tests by their very nature tend to screen out people with certain disabilities, I see no way for employers to conduct such tests without inviting ADA lawsuits from those who fail them.

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In addition, an EEOC enforcement guidance defines a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Evaluations, available at http://eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter Enforcement Guidance]. Under this broad definition, any return-to-work test would necessarily qualify as a medical examination because it seeks to determine whether the employee is fit enough to resume her duties. Employers seeking to avoid ADA lawsuits would have to allow injured workers to return to the job without being able to verify their fitness for duty, creating the potential for re-injury. The Enforcement Guidance also declares physical agility tests not to be medical examinations “as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure).” Hence, a single pulse measurement taken over the course of a two-day physical agility test would be sufficient to convert such test into a medical examination. If an employee taking a physical agility test shows obvious distress, the examiner would not be able to take her pulse or blood pressure as a precautionary measure without implicating the ADA. Employers seeking to ensure returning workers’ safety must therefore navigate the precarious straits between the Scylla of ADA liability and the Charybdis of a negligence lawsuit. Fearing either form of liability, employers may very well decline to conduct any form of testing, thereby increasing the risk of returning worker injury.

Lesson Five

In the case of the evaluation of an incumbent, the Thinking Evaluator should issue a Summary Report only. Notes about physiological response to activity or medical history not tied directly to the injury in question should be retained in the evaluator’s files.

Lesson Six

A reading of the Opinion seems to indicate that the employer did not participate in an interactive re-employment process. Going through the proper channels, the Thinking Evaluator could have inquired about the employer’s accommodation process. Given that the fee payer in this case allowed a job analysis to be performed, and that the employer is facing legal costs plus a $250,000 judgment if the appellant prevails, one would anticipate that an examination of alternative positions or accommodations would be considered.

A related question that may have impacted the employer’s case resolution strategy has to do with Indergard’s status under ADA: was she a “qualified individual with a disability”?

Keeping in mind that the writer is not a legal professional, consider the actions of the physician in this case: at a point in time before the FCE was conducted, the physician lifted all restrictions

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on Indergard. That appears to indicate that Indergard did not have an impairment. Therefore, if no impairment exists, how can a disability exist?

Further, to the point of being a qualified individual with a disability, the inability of an individual to lift 65 pounds is not a disability.

Lesson Seven

The Court’s Opinion does not specify to which essential function the 65 pounds of lifting for the Consumer Napkin Operator position and the 75 pound lifting for Napkin Adjuster position are tied. We know that lift and carry are required but we do not know the nature of the essential function. This raises three points for the Thinking Evaluator:

A. In order to increase the Utility of the FCE, the evaluator should turn to the job analysis report to discover the essential function tied to lifting and carrying. The work simulation portion of the evaluation should have addressed those essential functions.

B. Given that the two lifts required are considerably above the NIOSH and Washington State cut-points for safe lifting, and given that Indergard is reportedly an incumbent in the Consumer Napkin Operator position, one would want to refer to the Snook tables to gain an understanding of the percentage of the female population capable of performing these lifts safely. The evaluator has to be careful here to not preconceive Indergard’s potential for performing the lift but should have an idea about the likelihood of her safely performing the lift.

C. Indergard challenged the lifting requirements listed in the job analysis. A thorough job analysis would list the weight, range, grip, frequency and duration of lifting. One can easily see how a job analysis using DOL metrics (Occasional, Frequent, Constant) would leave room for argument in this case.

The fact that the job analyst actually measured the demands of the job is a strong plus. If the analyst had simply interviewed supervisors or incumbents about the demands, Indergard's rejection of the demands may have carried more weight.

Lesson Eight

The Court’s Opinion referred to some important issues relative to the FCE protocol. We can learn from these issues:

A. The FCE protocol appears to not be tailored to the individual case. Signs of this can be seen in the 21-minute endurance test.

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1. One has to question the purpose of this test: Was it designed to determine capacity for walking or to measure endurance?

a. If this was a MET test then two separate, three-minute sections of the walking protocol should have been administered

b. If this was designed to gauge the individual’s ability to perform the physical demand of walking tied to an essential function then it should have reflected the walking requirement. Not knowing the details of the job analysis, one has to question whether the evaluator was reflecting on that demand or was simply following a set, non-individualized protocol.

2. Clear reporting of the job’s endurance requirements would have benefited a Thinking Evaluator in design of an individualized FCE.

B. The individual was asked to perform a static lift.

1. Again referring to the job analysis, is static lifting actually a requirement tied to an essential function? My experience tells me that it is highly unlikely.

2. Most Thinking Evaluators have dropped static strength tests, such as lift, push or pull, from their protocols based on extensive studies that demonstrate the invalidity of static strength on predicting lift capacity.

Lesson Nine

It would appear that any clinicians doing work in this area (FCE's for employers where an ADA challenge may occur) need to write their reports with explanations for each test stating how it is needed in order to determine the client's ability to perform job demands. And, in the case that the test is needed to ensure Safety, that purpose should be stated clearly. Otherwise appellants and judges who are inclined to allow such technical arguments may focus on the tests as being unrelated to determination of physical job capability (thereby violating ADA guides). Therapists may also want to consider dropping their assessment of mental health issues unless that is the focus of the injury (in this case for a knee injury it might not be needed).

Indergard v. Georgia-Pacific serves as a useful training tool for functional capacity evaluators. The evaluators who performed the job analysis and the FCE gave each of us a valuable gift – we thank them for what they endured to help us all learn. The comments in this paper should not be taken as criticism of those that were involved in the case.

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We will be holding a webinar on January 19th to follow-up on this subject. Subsequent webinar dates, as well as the link to join the webinars, will be added to the “Spotlight” section of the website, which can be found on the homepage.

Also, if you are a Matheson graduate, check the Resources section of the website for more FCE-relevant court cases. You must be logged-in to view them.