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.

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

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. 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. 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.

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