Fix Your FCE and POET Practice: Reduce Your ADA Title I Litigation Profile: June 16

Saturday, June 16th, 9:00 a.m. to 4:30 p.m.

Hosted by Industrial Rehabilitation & Evaluation Services, LLC

770 West Hampden Avenue, Suite 300

Denver, Colorado

 

Contact Hours: 6.0

Tuition: $275; Early Bird Tuition Expires Monday, June 4th: $225

 

Each day across America hundreds of new hire post-offer employment tests, worker’s compensation return-to-work functional capacity evaluations, and work-related physician physicals are conducted. A large number of these work readiness assessments are administered outside of compliance with Title I of the Americans with Disabilities Act. It is imperative that each medical professional who performs functional capacity evaluations or post-offer services is up-to-date with the test administration guidelines emanating from recent Equal Employment Opportunity Commission (EEOC) and federal court settlements.  The work evaluation methods of a physician and a therapist were at the heart of a recent $5.5M settlement.

This course takes a “deep dive” into the new world of work evaluation under ADA Title I. Beginning with a clear definition of “medical examination and inquiry” under Title I, we will examine the new guidelines for these tests:

  • Functional Capacity Evaluation (FCE) for stay-at-work
  • Functional Capacity Evaluation (FCE) for reasonable accommodation determination
  • Post-Offer Testing (POET) and Pre-Placement Testing (PPT)
  • Return-to-work Functional Capacity Evaluation (FCE) for workers’ compensation

Medical examination topics addressed during this course will include:

  • A work product which defines physical abilities in terms of Sedentary, Light, Medium, Heavy, Very Heavy
  • A work product which defines physical demands in term of Occasional, Frequently, or Constant
  • A work product which states the individual cannot perform the physical demands of the essential functions because of inconsistent effort
  • Co-mingling “unsafe for testing” protocols with “unsafe for work” decisions
  • Incorrectly defining essential functions as including lifting, carrying, pushing, pulling
  • Interchanging important terms such as impairment and disability
  • Learning why “qualified individual” is the key phrase in ADA Title I testing
  • Performing endurance tests not connected to an essential function of the job
  • The ADA Title I workability decision without reference to a job description
  • The all-important physical or cognitive job demand link to an essential function
  • The cost of ignoring an in-place reasonable accommodation
  • The difference between an essential function and a physical or cognitive work demand
  • The inadequacy of functional capacity evaluation systems which attempt to “catch” inconsistent effort
  • The need to address reasonable accommodation issues during testing
  • The power of recognizing qualification standards as the foundation of the workability decision
  • The presence of work disability at the nexus of impairment and disability
  • The procedures for employment agency new hires
  • The work evaluator’s product that does not address reasonable accommodation
  • The work evaluator’s workability decision affected by the presence of signs of low effort
  • The work product that discusses low effort but does not discuss potential causes
  • When coverage under ADA Title I is triggered
  • Why using a large patient outcome database is a major error under Title I
  • Your defenses to a charge of employment discrimination

Workshop participants are encouraged to bring one or more Functional Capacity Evaluation reports that include a statement about low levels of physical effort (or malingering). These work products will be used to tailor individual consultation and will not be shared with other participants or teaching staff.

This workshop supports your learning process by presenting real-life ADA Title I scenarios. At the beginning of the workshop, we will select one or two of the examples seen below to follow through the day. We encourage you to submit your interesting or difficult experiences, too. You may email materials before the event to info@mathesonra.com or call us at 603-358-6633.

Qualified Individual #1: Long-Term Propane Truck Driver

This 32 years old employee with no accident history is working his route when the truck goes into a ditch on a county road (because of loose gravel) and flips over. The unconscious driver was extracted from the vehicle with head and multiple orthopedic injuries. At the time of injury, the driver lives in a rural area, is a community volunteer, is a high school graduate with eight years of satisfactory job performance with this company, acts as a trainer for new drivers and is happily married with two children.

Driver recovers well physically from arm and leg fractures (and returns to work) but has increasing problems with short-term memory loss, headaches, emotional lability, weight gain, and lack of patience. He is getting lost on familiar routes and cannot do tasks requiring three-step processing. Customers complain that about the driver’s crabbiness, lack of customer service ethic, inaccurate invoicing, and being late. His employer is also noting forgetfulness with equipment maintenance and submitting reports.

The marriage is suffering, and volunteer work is no longer part of his after-work life.  While rural medical care is available, post-concussive syndrome or another brain injury may not have been well addressed.

(Scenario provided by a senior insurance case manager.)

Qualified Individual #2: Experienced Custodian

A seasoned employee (age 30) falls from a 6-foot ladder while changing light bulbs, experiencing broken wrist, strained back, and concussion. Wrist and back injuries heal, and custodian returns to transitional work during his recovery time. However, concussive symptoms remain and appear to get worse. Issues include forgetfulness, fatigue, headaches, migraines with light and sound sensitivities, slower eye movements, and impatience with staff. He cannot remember room locations or match work slip assignments correctly, forgets safety and cleaning standards associated with work, and is often late to work.

(Scenario provided by a senior insurance case manager.)

Qualified Individual #3: Nurse, General Duty

A nurse, age 32 with chronic lower back pain reinjures back during team transfer of 400-pound, immobile patient. Returns to work as scheduled, assigned to “light duty” to coincide with six weeks of physical therapy. Light duty to include monitoring of telemetry units. Twenty-eight days post injury the nurse presents for examination by a company physician. The physician orders no lifting over 20 pounds, no repeated squatting or bending, and no pushing/pulling of patients or equipment.

A functional capacity evaluation also ordered. The test vendor advertises the evaluation as including:

“An objective Functional Capacity Evaluation that can be used to determine the functional abilities of an injured employee and their ability to safely return to their occupational duties.  We will perform a comparison of the individual’s abilities as demonstrated during testing against the essential demands of their occupation.  The report will identify whether the individual meets the essential demands of the position, and if they do not, the report will identify at what level they may safely perform based on their results.”  The description of the evaluation also states, “Data from each test is collected using our state of the art motion capture systems.” The FCE reports states the following:

FCE Summary of Ability to Complete Tasks 

The examinee demonstrated a consistent effort during 4 of 6 components of this evaluation. She demonstrated 2 of 6 indicators for self-limited performance during grip strength testing and a high coefficient of variation in 12 of 15 whole body strength tasks with three positive horizontal displacement values. While her overall performance is an accurate portrayal of her physical abilities, her significant self-limited performance during whole body strength testing is not. 

Job Duty Recommendations 

Based on the examinee’s performance, she meets the essential postural demands of her occupation. Based on her significantly self-limited performance during whole body strength testing, she does not meet the essential physical demands of her occupation. 

Recommended Alterations to Job Demands 

Based on the examinee’s significantly self-limiting performance during whole body strength testing, she does not meet the essential physical demands of her occupation. However, her significantly self-limited performance minimally meets the demands of light work as defined by the Dictionary of Occupational Titles (20 pounds occasional, 10 pounds frequent, negligible constant).

(This scenario was provided by an employee considering a charge of discrimination. A formal charge of employment discrimination was not filed as the employer withdrew the functional capacity evaluation report after consultation with an ADA Coordinator with an extensive background in work evaluation under ADA Title I. The employee has returned to work in her original position.)

Roy Matheson, ADAC has a 30-year background in occupational rehabilitation and ergonomic evaluation training and professional certification. His initial exposure to employment testing began at the Employment and Rehabilitation Institute of California (ERIC) in 1983. The rehabilitation and work evaluation philosophies at the heart of the medical examination section of ADA Title I originated at ERIC under its founder, Dr. Leonard Matheson.

Work tolerance screening, work capacity evaluation (now known as ‘functional capacity evaluation’), and work hardening were introduced as new rehabilitation services at ERIC clinic. Roy Matheson’s contribution to the growth of employment testing under the Matheson philosophy was the development of training programs, software, and equipment used by therapists around the globe.

In 2012, the effect of federal court cases involving employment testing served as a call to action for Roy Matheson. In the ensuing years, he transitioned to what is now Reasonable Accommodation, LLC, and reasonable accommodation.com. His practice focuses on advising and training employers, government agencies, therapists, and legal counsel of the mechanics of medical examination and reasonable accommodation under ADA Title I.

Roy has presented as a keynote speaker, panelist, trainer, or workshop instructor at more than 400 public and private educational events, management training programs, and national conferences. His audience includes managers and staff of federal, state, county, and municipal government entities as well as the full spectrum of corporate entities across the United States, Canada, and six other countries. Roy’s body of work includes hundreds of online webinars and blogs related to Title I of the ADA and the Rehabilitation Act.

His consulting and guidance assignments address legal compliance issues raised under Title I of the Americans with Disabilities Act and Section 501 of the Rehabilitation Act. These issues include aspects of employment testing, essential function job analysis, and reasonable accommodation program start-up and management. Roy sees himself as a trusted adviser in demanding situations requiring clear, well-thought-out guidance within the environment of employment and disability-related civil rights law.

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