NINE LESSONS AND SUGGESTIONS FOR PRACTICE FOR FUNCTIONAL CAPACITY EVALUATORS WEBINAR WITH ROY MATHESON OPEN DISCUSSION AT ...
Lesson One <ul><li>The headline read, “EEOC say no PT or OT in FCE” </li></ul><ul><li>Take the time to read the actual fin...
Lesson Two <ul><li>Know where the client is in the employment process </li></ul><ul><ul><li>Pre-Employment (Job Applicant)...
Lesson Three <ul><li>Obtain an “ Authorization for Evaluation ” from incumbent </li></ul><ul><li>Consent to Evaluate  ≠  A...
Lesson Four <ul><ul><li>Utility </li></ul></ul>
Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility”  of the FCE report: </li></ul></ul><ul><ul><li>“...
Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility”  of the FCE report: </li></ul></ul><ul><li>By st...
Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility”  of the FCE report: </li></ul></ul><ul><li>By st...
Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility”  of the FCE : </li></ul></ul><ul><li>By understa...
Lesson Four <ul><li>From the Factual and Procedural Background </li></ul><ul><li>GP moved for summary judgment, and Inderg...
Lesson Four <ul><li>From the Factual and Procedural Background </li></ul><ul><li>GP’s reply argued that the PCE was not a ...
Lesson Four From the Factual and Procedural Background The magistrate judge agreed with GP that the PCE was not a medical ...
Lesson Four From the Factual and Procedural Background In the interest of providing a thorough analysis, however, the magi...
Lesson Four From the Factual and Procedural Background The magistrate judge, however, decided that GP was nonetheless enti...
Lesson Five <ul><li>Notes regarding physiological response to activity or medical history not tied to injury in question s...
Lesson Six <ul><li>Inquire about employer’s accommodation process </li></ul><ul><ul><li>Examine alternative positions </li...
Lesson Seven <ul><li>Nature of the essential function is unknown </li></ul><ul><ul><li>Turn to job analysis to increase  U...
Lesson Eight <ul><li>FCE protocol seems to be a cookbook recipe and not tailored to the individual case </li></ul><ul><li>...
Lesson Eight <ul><li>FCE protocol seems to be a cookbook recipe and not tailored to the individual case </li></ul><ul><li>...
Lesson Nine <ul><li>FCE's for employers where an ADA challenge may occur: </li></ul><ul><ul><li>Write reports w/ explanati...
References <ul><li>The 2008 Amendment of the Americans with Disabilities Act </li></ul><ul><ul><li>http://www.ada.gov/pubs...
Valuable Gift <ul><li>This case is a useful training tool for functional capacity evaluators </li></ul><ul><li>Comments sh...
Comments/Questions? www.roymatheson.com [email_address] 1-800-443-7690 +1-603-358-6525 Find us on Facebook
“ EEOC say no PT or OT in FCE” <ul><li>This Ninth Circuit Court of Appeals case sets precedent </li></ul><ul><li>Follows o...
<ul><li>http://uscode.house.gov/ </li></ul><ul><li>The Office of the Law Revision Counsel prepares and publishes the Unite...
<ul><li>I began thinking of the parallel between working in the forest by myself and you working in your medical office or...
<ul><li>We potentially get into trouble when we take for granted that we have felled a tree like this one or evaluated a p...
<ul><li>Today's webinar is the second live broadcast. This series of six broadcasts will examine recent court cases of int...
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Indergard v Georgia Pacific - Analysis by Roy Matheson

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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.

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Indergard v Georgia Pacific - Analysis by Roy Matheson

  1. 1. NINE LESSONS AND SUGGESTIONS FOR PRACTICE FOR FUNCTIONAL CAPACITY EVALUATORS WEBINAR WITH ROY MATHESON OPEN DISCUSSION AT END OF PRESENTATION Indergard v. Georgia-Pacific
  2. 2. Lesson One <ul><li>The headline read, “EEOC say no PT or OT in FCE” </li></ul><ul><li>Take the time to read the actual finding </li></ul><ul><li>Don’t rely on media’s “spin” or sensationalism </li></ul>
  3. 3. Lesson Two <ul><li>Know where the client is in the employment process </li></ul><ul><ul><li>Pre-Employment (Job Applicant) </li></ul></ul><ul><ul><li>Post-Offer (Conditional Hire) </li></ul></ul><ul><ul><li>Employment (Employee or Incumbent) </li></ul></ul><ul><li>Kris Indergard was an incumbent </li></ul><ul><ul><li>ADA concept of medical inquiry comes into play </li></ul></ul><ul><ul><li>Privacy rights return to force </li></ul></ul>
  4. 4. Lesson Three <ul><li>Obtain an “ Authorization for Evaluation ” from incumbent </li></ul><ul><li>Consent to Evaluate ≠ Authorization for Evaluation </li></ul>
  5. 5. Lesson Four <ul><ul><li>Utility </li></ul></ul>
  6. 6. Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility” of the FCE report: </li></ul></ul><ul><ul><li>“ 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.” </li></ul></ul><ul><ul><ul><li>dissenting Judge O’Scannlain </li></ul></ul></ul><ul><ul><li>Continued… </li></ul></ul>
  7. 7. Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility” of the FCE report: </li></ul></ul><ul><li>By stating clearly that test is framed w/in Practice Hierarchy: </li></ul><ul><ul><li>Safety </li></ul></ul><ul><ul><li>Reliability </li></ul></ul><ul><ul><li>Validity </li></ul></ul><ul><ul><li>Practicality </li></ul></ul><ul><ul><li>Utility </li></ul></ul><ul><ul><li>Continued… </li></ul></ul>
  8. 8. Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility” of the FCE report: </li></ul></ul><ul><li>By stating clearly that the test focuses on determining safe, functional tolerances related to the essential functions of the job. </li></ul><ul><ul><li>Continued… </li></ul></ul>
  9. 9. Lesson Four <ul><ul><li>The thinking evaluator can increase the “Utility” of the FCE : </li></ul></ul><ul><li>By understanding the AADA and the legal process. </li></ul><ul><ul><li>Continued… </li></ul></ul>
  10. 10. Lesson Four <ul><li>From the Factual and Procedural Background </li></ul><ul><li>GP moved for summary judgment, and Indergard’s response abandoned all claims except those alleging that the PCE was an improper medical examination and that GP discriminated against her because of a perceived disability or record of disability . </li></ul><ul><ul><li>Continued… </li></ul></ul>
  11. 11. Lesson Four <ul><li>From the Factual and Procedural Background </li></ul><ul><li>GP’s reply argued that the PCE was not a medical examination, and that it therefore did not violate the ADA. It further argued that even if the PCE was a medical examination, it was job-related and consistent with business necessity , and therefore expressly allowed by the ADA. See 42 U.S.C. § 12112(d)(4)(A). </li></ul><ul><ul><li>Continued… </li></ul></ul>
  12. 12. Lesson Four From the Factual and Procedural Background The magistrate judge agreed with GP that the PCE was not a medical examination. Because the magistrate judge determined that the PCE was not a medical examination, he concluded that GP had not violated 42 U.S.C. § 12112(d)(4)(A) and that it was entitled to summary judgment .
  13. 13. Lesson Four From the Factual and Procedural Background In the interest of providing a thorough analysis, however, the magistrate judge analyzed GP’s business necessity defense. Noting that the standard to establish business necessity is “quite high,” the magistrate judge found that although GP had a reasonable basis to request the PCE, it “ would not be entitled to summary judgment on the basis of the business necessity defense because [GP] failed to show that the PCE was limited to the essential functions ” of Indergard’s prior positions.
  14. 14. Lesson Four From the Factual and Procedural Background The magistrate judge, however, decided that GP was nonetheless entitled to summary judgment because the PCE was not a medical examination.
  15. 15. Lesson Five <ul><li>Notes regarding physiological response to activity or medical history not tied to injury in question should stay in the evaluator’s files </li></ul><ul><li>Consider issuing a summary FCE report only </li></ul>
  16. 16. Lesson Six <ul><li>Inquire about employer’s accommodation process </li></ul><ul><ul><li>Examine alternative positions </li></ul></ul><ul><li>Was Indergard a “ qualified individual with a disability ” under the ADA? </li></ul><ul><ul><li>The physician lifted all restrictions on Indergard before the FCE, therefore no impairment and thus no disability… ? </li></ul></ul><ul><ul><li>The inability of an individual to lift 65 lbs is not a disability </li></ul></ul>
  17. 17. Lesson Seven <ul><li>Nature of the essential function is unknown </li></ul><ul><ul><li>Turn to job analysis to increase Utility by identifying the essential function </li></ul></ul><ul><ul><li>A physical demand is never an essential function </li></ul></ul><ul><li>Indergard challenged lifting requirements in JAR, but job analyst actually measured the demands </li></ul>
  18. 18. Lesson Eight <ul><li>FCE protocol seems to be a cookbook recipe and not tailored to the individual case </li></ul><ul><li>21-Minute Endurance test </li></ul><ul><ul><li>To determine capacity for walking or to measure endurance? </li></ul></ul><ul><ul><li>Job analysis should contain endurance requirements tied to an essential function </li></ul></ul>
  19. 19. Lesson Eight <ul><li>FCE protocol seems to be a cookbook recipe and not tailored to the individual case </li></ul><ul><li>Indergard was asked to perform Static Lift </li></ul><ul><ul><li>Tied to which essential function? </li></ul></ul><ul><ul><li>Studies demonstrate the invalidity of static strength on predicting lift capacity </li></ul></ul>
  20. 20. Lesson Nine <ul><li>FCE's for employers where an ADA challenge may occur: </li></ul><ul><ul><li>Write reports w/ explanations for each test </li></ul></ul><ul><ul><li>State how test is needed to determine client's ability to perform job demands </li></ul></ul><ul><ul><li>If test is needed to ensure Safety , state that purpose clearly </li></ul></ul><ul><ul><li>Consider dropping assessment of mental health issues unless that is the focus of the injury </li></ul></ul>
  21. 21. References <ul><li>The 2008 Amendment of the Americans with Disabilities Act </li></ul><ul><ul><li>http://www.ada.gov/pubs/ada.htm </li></ul></ul><ul><li>FCE-relevant court cases housed in Resources section at www.roymatheson.com </li></ul>
  22. 22. Valuable Gift <ul><li>This case is a useful training tool for functional capacity evaluators </li></ul><ul><li>Comments should not be taken as criticism of those that were involved in the case </li></ul>
  23. 23. Comments/Questions? www.roymatheson.com [email_address] 1-800-443-7690 +1-603-358-6525 Find us on Facebook
  24. 24. “ EEOC say no PT or OT in FCE” <ul><li>This Ninth Circuit Court of Appeals case sets precedent </li></ul><ul><li>Follows on Cripe v. City of San Jose Police </li></ul><ul><ul><li>Qualification standards </li></ul></ul><ul><ul><li>Business necessity versus convenience </li></ul></ul><ul><li>We will review this case from the point-of-view of nine lessons </li></ul>
  25. 25. <ul><li>http://uscode.house.gov/ </li></ul><ul><li>The Office of the Law Revision Counsel prepares and publishes the United States Code, which is a consolidation and codification by subject matter of the general and permanent laws of the United States </li></ul>
  26. 26. <ul><li>I began thinking of the parallel between working in the forest by myself and you working in your medical office or clinic by yourself. Both of us routinely do our jobs. And part of doing the job well is being aware of the unique features of every fce, every patient/client and of every tree. That's what the Thinking Evaluator concept is based on: brining our experience to each case while approaching each as if it were unique. </li></ul>
  27. 27. <ul><li>We potentially get into trouble when we take for granted that we have felled a tree like this one or evaluated a patient like this one. Experience is our friend as well as a sleeping threat that we need to pay attention to everyday. </li></ul>
  28. 28. <ul><li>Today's webinar is the second live broadcast. This series of six broadcasts will examine recent court cases of interest to functional capacity evaluators and the consumers of functional capacity evaluation. Along the way we may visit the amended americans with disabilites act to update our knowledge of the legislation that is not impacting the practice of fce in workers compensation. (could a wc or wh program be part of an accommodation plan?) </li></ul>

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