PTs are having a credibility crisis with functional capacity evaluations (FCEs) in the legal community right now. Just ask an attorney whether he or she finds them useful as medical-legal evidence in a workers’ compensation hearing or other court proceeding. I’ve done FCEs for nearly 20 years, but after recently becoming an attorney, I also developed a different view of its utility—to be admitted as evidence, an FCE must meet certain standards under the tribunal’s rules of evidence. PTs are not usually familiar with the standards that their FCEs have to meet, and therefore they do not provide documentation or rational evidence-based opinions that are legally useful, even though the purpose of the FCE is frequently to answer legal questions! This article is intended to provide a legal view of FCEs as evidence and suggest ways that PTs can improve their FCE product to meet the needs of the legal system.

Admissibility Standards
Courts and administrative agencies have rules about the admissibility of evidence, and these vary between jurisdictions. Rules that determine the admissibility of evidence are intended to ensure that the fact finder (either a jury, judge, or agency adjudicator) only hears or considers evidence that is reliable, valid, and relevant. Where a jury is the fact finder, the judge is the gatekeeper and determines what evidence the jury gets to hear. In an administrative hearing, such as in a workers’ compensation hearing, an agency adjudicator, frequently called an administrative law judge (ALJ) or hearing officer (HO), determines admissibility and serves as fact finder.

Generally speaking, evidence standards in agency hearings may be more liberal since there is less need to protect a layperson jury from hearing unreliable evidence, thus allowing more evidence to be admitted. In addition, opinion evidence is frequently held to a lower standard than scientific evidence. However, even when an ALJ or HO allows evidence to be admitted, he or she still has the prerogative to decide how much weight to give the evidence when making his or her ruling.

Expert testimony (as opposed to opinion testimony) under the Federal Rules of Evidence “must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”¹ The Supreme Court held in the Daubert case that this rule required the judge to consider whether the expert’s underlying methodology or technique had been or could be tested; whether it had been subjected to peer review; whether it had a known or potential rate of error; and whether and to what degree the methodology or technique had been accepted within the relevant scientific community.² Many states have adopted the Daubert standard while others have continued to apply the Frye standard, which only required that expert opinion based on scientific evidence be “generally accepted” as reliable in the relevant scientific community.³ 

Administrative agencies in some jurisdictions have adopted an even lower standard of admissibility. For example, workers’ compensation hearings in Maine apply a “Rule of Privilege” that allows evidence to be admitted if it is “the kind of evidence that reasonable persons are accustomed to rely on in the conduct of serious affairs.”⁴ The agency may have also adopted rules restricting who can give medical-opinion testimony. If a PT is not recognized by the agency as being qualified to give testimony, then the FCE findings have to be testified to by a physician or other qualified professional. This does not lower the standard of evidence for the FCE findings. Instead, it makes it imperative for the physician to know how credible the evaluator and the FCE methodology are so he or she can feel comfortable relying on it when incorporating the FCE findings into their own opinion.

With these admissibility standards, it is easy to see how the PT’s credibility can be called into question if the FCE methodology does not meet the evidence standards of the tribunal. In a Daubert jurisdiction, each individual FCE test could be scrutinized for whether it has scientific reliability and validity, whether the potential error rate is known, whether the methodology has been subjected to peer review, and whether it has been accepted by the professional community.

Many FCE products claim to meet the Daubert standards. However, the reliability and validity studies on individual FCE tests has been very limited. In addition, studies have not been adequately extended to the reliability of using extrapolation methods to predict work tolerance for an 8-hour day. Thus, a Daubert analysis would leave unanswered questions about potential error rates of work-tolerance predictions over an 8-hour day from one-repetition max or short-duration FCE tests. It is also important to know that proprietary research may not meet the Daubert standards where the research methods are kept confidential and have not been published or peer-reviewed. A PT instantly loses credibility when testifying that his or her professional opinion relies on secret research that they have never read or have sworn to keep secret. Believe it or not, I have witnessed such testimony in a deposition!

While the research behind the FCE methodology may be important in some jurisdictions, it is not the end of the credibility analysis. In jurisdictions that have lower standards for evidence or admit FCEs as opinion evidence, the ALJ/HO will still expect the PT to analyze and interpret the results and provide a rational professional opinion, not just consistency and validity scores. Therefore, the PT’s credibility does not rest on the FCE testing methodology alone, but is also related to the PT’s ability to analyze and interpret the data collected in accordance with reliable, valid, and relevant evidence-based practice standards.

PTs should make an effort to support their test results with any available musculoskeletal data or observations that lend content or construct validity and give the report credibility as a professional opinion. PTs should also make sure that their opinion addresses any relevant definitions in the statute. For instance, in Maine, work capacity is an employee’s ability to sustain “reasonable employment,” defined as “work that is within the employee’s capacity to perform that poses no clear and proximate threat to the employee’s health and safety ...”⁵ This statutory definition makes it necessary for the PT to evaluate and report whether the performance on each test was safe versus reporting only the maximum or subjective end point of the performance. Therefore, even where scientific-evidence standards are lower, the PT must analyze and measure the work risks against the employee’s performance to offer a credible opinion.

Aside from evidence standards, attorneys and adjudicators also have the following complaints about FCEs that undermine the PT’s credibility:

1) Unqualified support personnel are performing FCEs without having the statutory authority to provide a professional opinion.

2) FCEs that provide only subjective data are not useful.

3) FCEs, or tests within an FCE, are frequently labeled as valid or invalid without an operative definition being provided. Consistency-of-effort measures are not interpreted, and relevancy to the legal questions is not explained. Inconsistency data is not always reliable, valid, or relevant. Therefore, it creates more legal issues instead of leading to case closure.

4) PTs do not provide a rational analysis and interpretation of the data as it applies to the legal questions.

Ensuring Credibility
So what can be done to give more legal weight to an FCE and more credibility to the PT?

First and most importantly, FCEs should be performed only by health care providers who have the statutory authority to evaluate clients. Even if the FCE is done in a standardized way, it is not just data collection. A certification earned in an FCE seminar does not give someone statutory authority to evaluate. Therefore, an FCE that has been done by a PTA can be discredited on its face in a hearing regardless of how good it is!

Second, FCEs that allow the employee to control the test may or may not provide objective data. It is not my intent to discuss the pros and cons of using an kinesiophysical versus a psychophysical approach. From an attorney’s perspective, the most important thing is that the documentation indicates which tests can be relied upon as an objective measure of performance. Therefore, even a psychophysical test should provide documentation of physical signs, such as changes in body mechanics and recruitment patterns, to help substantiate an objective safe effort.

Third, providers need to know the legal questions in a workers’ compensation case. Disputes frequently center on legal causation and/or the source of residual work incapacity. To determine legal causation, which makes the employer responsible, there must be a causal link between the disability and the work-related injury. Each jurisdiction may define employer liability and legal causation slightly differently, but, in general, the injury must “arise out of or in connection with employment.” Pre-existing conditions by themselves are not compensable without a work-related incident that causes additional disability; however, each jurisdiction may define circumstances under which a pre-existing condition is compensable.

For example, in Maine a pre-existing condition is compensable only when the work “aggravates, accelerates, or combines with the pre-existing condition in a significant way to result in increased disability.”⁶ This statutory language creates a liability threshold that can be overcome only with medical or musculoskeletal evidence that distinguishes the source of the disability (functional incapacity) from the medical impairments and pre-existing disability. PTs are the provider of choice when it comes to identifying and quantifying disabilities that result from impairments. However, FCE evidence cannot answer the legal causation question unless the neuromusculoskeletal exam findings and impairments are correlated to the functional limitations.

Fourth, PTs need to be careful how they use, interpret, and report consistency-of-effort data. Attorneys are not as thrilled as claims adjustors when they receive an FCE that characterizes the employee’s effort as submaximal or invalid. This infers secondary gain issues resulting in a legal controversy over whether liability has been appropriately assigned, moving the file from the claims adjustor’s to the attorney’s desk. The FCE data now has limited value in resolving the case, since the employee’s effort has been identified as subjective.

A wide variety of tests have been used to determine the “validity” of the employee’s efforts without regard to whether the test meets the jurisdiction’s evidence standards. As scientific tests, the consistency-of-effort and performance measures may be held to the jurisdiction’s expert standard because they raise issues of reliability, validity, and relevance. Tests that indicate inconsistent effort, even if the measure has scientific reliability, may not have relevance if the person’s performance is within normal ranges. Therefore, documentation that states or infers an “invalid effort” must include an explanation of whether the validity measure is relevant as it applies to the worker’s ability to perform the demands of the job. Attorneys and adjudicators don’t understand the limits of these “validity” tests, and therefore they may inappropriately conclude that a worker cannot work or is malingering without the PT’s professional interpretation.

In conclusion, therapists who are thinking about purchasing an FCE product or training should evaluate the evidence behind the method but understand that a standardized procedure is not what makes the test hold up in court. Even if the test is scientifically valid and reliable, the test relevance and evaluator’s conclusions are still subject to scrutiny under opinion and expert-testimony rules. Therefore, any FCE that provides fundamentally reliable data and not only allows, but requires, the PT to provide a professional opinion from the data can be modified to meet the standards of the tribunal. In the end, it is the well-written, rational opinion that tips the credibility scales.

Gwen Simons, PT, JD, OCS, FAAOMPT, is a lawyer and physical therapist in Portland, Me. She also teaches in the entry-level and transitional-DPT programs at the University of New England. She can be reached at gwen@optamaine.com.

References
1. Federal Rules of Evidence 702.

2. Daubert v Merrell Dow Pharmaceuticals Inc, 509 US 579 (1993).

3. Frye v United States, 293 F 1013 (DC Cir 1923).

4. 39-A MRSA § 309(2).

5. 39-A MRSA § 214(5).

6. 39-A MRSA § 201(4).