FCE (Functional Capacity Evaluations)

1 Page 1 of 12 FCE ( functional Capacity Evaluations) are used often in South Carolina worker compensation claim s presentation. It hasbeen this author s experience that far too much reliance is given to the FCE reports, though,actually the FCE procedure is varied in use, heavily reliant on subjective opinions of therapists(even though often stated self servingly to the contrary, and inconsistent in , medical doctors order FCEs and utilize them in formulating their opinionsabout a patient s physical function level of abilities. Doctors often do so knowing almost nothingabout determining the validity of (or lack of validity) the performance method of an FCE. FCEsare no more valid and reliable than are polygraph exams. FCE s have multiple (dozens) of waysto do them and no generally recognized and accepted consensus as to which method is reliable tojustify being admitted into evidence. (At least polygraph exams all utilize the same machine.)Human nature, being what it is, generally seems to cause people to want to simplifyinformation collection and if there is a perceived reliable method or test to use (even if it isn t),they will.)

2 Too often any so called FCE tests/evaluations are assumed to be reliable because ofunquestioned repetitive use. The, We ve always done it that way so it must be reliable .. isan assertion/assumption as well as an arbitrary conclusion not based on appropriate analysis of the validity and reliability of a FCE affects both sides indisputes/claims. This outline seeks to educate attorneys for either side, commissioners or doctorsto question and determine the reliability of any FCE method, which is not done IS AN FCE?It is a medically optional examination (lacking any consensus generally recognizing andaccepting a particular exam method as reliable) usually carried out by a physical therapist, toexamine/evaluate an individual s Capacity to physically function, usually as applied to the contextof employment. There are many dozens of different methodologies used to perform an FCE. Alimited sample list includes:Page 2 of 12 1. Acceptable Maximum Effort (AME)15.

3 Progressive Isoinertial Lifting evaluation 2. Applied Rehabilitation Concepts (ARCON) (PILE) 3. Assess Ability16. Polinsky functional Capacity Assessment 4. Blankenship functional Capacity Evaluation17. Quantitative functional Capacity evaluation 5. BTE Work Simulator (QFCE) 6. California functional Capacity Protocol (Cal-FCP)18. Singer/New Concepts Vocational evaluation 7. Dictionary of Occupational Titles - System (VES) August 17, 2009 Residual functional Capacity (DOT-RFC)19. Smith Physical Capacity evaluation 8. EPIC Lift Capacity Test20. Spinal Function Sort 9. ERGOS Work Simulator21. Valpar Component Work Sample10. ErgoScience Physical Work Performance 22. WEST Standard evaluation evaluation (PWPE)23. WEST 4/4A11. Isernhagen functional Capacity Evaluation24. WEST Tool Sort12. Key Method functional Capacity Assessment25. Work Ability Mark III13. Lido WorkSET26. Work Box14. MESA/System 200027.

4 WorkHab Australia ADMISSIBILITY OF AN Administrative Procedures Act states in Code Section 1-23-330 Evidentiary Matters in Contested Cases:In contested cases: (1) Irrelevant, immaterial or unduly repetitious evidence shall beexcluded. Except in proceedings before the Industrial Commissionthe rules of evidence as applied in civil cases in the court of commonpleas shall be followed. (emphasis added) Agencies shall give effect tothe rules of privilege recognized by law. Objections to evidentiary offersmay be made and shall be noted in the record. Subject to theserequirements, when a hearing will be expedited and the interests of theparties will not be prejudiced substantially, any part of the evidence maybe received in written form; Code Section 1-23-110 and 120 as well as 42-3-185 sets forth proceduresand basis for the Commission s promulgation of 67-612 (Admission of Expert s Report as Evidence) outlines the basis foradmissions of an asserted expert s report, presumably including reports by FCEtherapists.

5 A very important part of it though, allows any party to challenge theadmissibility. Specifically, 67-612(I) states: By complying with this regulation,the parties do not waive any evidentiary objections to the introduction of aparticular exhibit. Such objections may include, but are not limited torelevancy, materiality, qualification of the expert, timeliness, privilege,hearsay or authenticity as may relate to the document in 3 of 12If an FCE report has been properly noticed under the regulation for submission inevidence, but a party wants to question admissibility, the party can and should do so. If there is aconcern about a commissioner possibly overlooking problems as to the FCE report, options tohelp remedy that include:Immediately, upon proper notice of other party s intent to submit the FCE the de benne esse deposition of the FCE therapist; whether to make an exception to usual procedure and subpoena thetherapist to the hearing to allow a commissioner to really weigh credibility of thetherapist opinion, in Note: Have staff procedures in place to promptly review APA formal notices(from opposing attorneys) checked for the need or lack of need to take a deposition or subpoenatherapist to the hearing.

6 Read R67-612 carefully. Is a postponement/adjournment motion neededto be filed? (See R67-613 Postponement or Adjournment of Scheduled Hearing.) for determining Admissibility of Scientific Evidence in South CarolinaState v. Council, 335 1, 515 508 (1999) reviewedappropriateness of the admissibility of certain DNA test results. Theopinion reviewed the legal analysis required. Portions of the opinion arerepeated here: .. Frye v. United States, 293 F. 1013 ( Cir. 1923). In Frye, thecourt held scientific evidence only became reliable, and thereforeadmissible, when it had attained the general acceptance of thescientific community as a whole. However, this Court has neveradopted that standard. Instead, prior to 1990, the standard foradmitting scientific evidence in south Carolina was the degree towhich the trier of fact must accept, on faith, scientific hypotheses notcapable of proof or disproof in court and not even generally acceptedoutside the courtroom.

7 State v. Jones, 273 723, 731, 259 , 124 (1979). This standard is more liberal than the Frye standard. In considering the admissibility of scientific evidence under the Jones standard, the Court looks at several factors, including: (1) the publications wand peer review of the technique; (2) prior application of the method to the Jones Factors type of evidence involved in the case; (3) the quality control procedures used fordeterminingto ensure reliability; and (4) the consistency of the method with recognized admissibilityscientific laws and procedures. State v. Ford, 301 485, 392 781 w (1990). This type of evidence is also subject to attack for relevancy and prejudice. Ford, 4 of 12 In 1990, South Carolina adopted Rule 24, SCRCrimP, which isidentical to Rule 702 of the Federal Rules of Evidence (FRE). In 1995,South Carolina replaced Rule 24 with Rule 702, SCRE. [fn15] Thisrule is identical to its predecessor, Rule 24, SCRCrimP, and Rule 720,FRE.

8 In 1993, the United States Supreme Court found the Frye test hadbeen superseded by the FRE and adopted new parameters foradmissibility under Rule 702 and 703. Daubert v. Merrill DowPharmaceutical, Inc., supra. Before scientific evidence is admitted,the trial judge must determine the evidence is relevant, reliable andhelpful to the jury. The Court suggested four factors to consider indeciding reliability in scientific evidence cases: (1) scientificmethodology; (2) peer review; (3) consideration of general acceptance;and (4) the rate of error of a particular technique. Id. The Courtstates if the evidence is reliable and relevant, the judge shoulddetermine if the probative value of the evidence is outweighed by itsprejudicial effect. Id. The Court recently held the standard of reviewof a lower court s decision to admit or exclude evidence underDaubert is an abuse of discretion. General Elec. Co. V. Joiner, 136, 118 512, 139 508 (1997).

9 While this Court does not adopt Daubert, we find the proper analysis for determining admissibility of scientific evidence is now under the SCRE. When admitting scientific evidence under Rule 702, SCRE, the trial judge wmust find the evidence will assist the trier of fact, the expert witness is Standard forqualified, and the underlying science is reliable. The trial judge should science evidapply the Jones factors to determine reliability. Further, if the evidence is admissibilityadmissible under Rule 702, SCRE, the trial judge should determine if its wprobative value is outweighed by its prejudicial effect. (emphasis added) Rule 403, SCRE. Once the evidence is admitted under these standards the jury may give it such weight as it deems appropriate. We conclude the trial judge was well within his discretion in findingthe results of the mtDNA analysis admissible under the Jones factorsand Rule 702, SCRE.

10 State v. Von Dohlen, 322 234, 471 , cert. denied, 519 972, 117 402, 136 316 (1996)(the admission of expert testimony is within the discretion of the trialcourt); State v. Bailey, 276 32, 274 913 (1981) (theadmissibility of evidence is within the trial court s discretion). Thisevidence assists the jury in determining whether appellant committedthe crimes because it provides an objective confirmation of thesubjective microscopial comparison performed on the hairs. Page 5 of 12 Mitochondrial DNA analysis has been subjected to peer review(emphasis added) and many articles have been published about thistechnology. The laboratory validated the process anddetermined its rate of error (emphasis added). Its underlying sciencehas been generally accepted in the scientific community (emphasisadded). Further, while forensic application of mtDNA analysis isfairly new, the technology has been used in other contexts for Results Admissibility (as quoted from State v.)