Legally Defensible Functional Capacity Evaluations

FCE tester doing research before testifying in a case

FCEs can be performed for a variety of reasons. The primary reason is to determine a person’s abilities versus limitations as it relates to the physical demands of work. These physical demands are then directly tied to the essential functions of a particular job or to physical demand levels defined and outlined in the Dictionary of Occupational Titles. FCEs have evolved over time based on changes to medicine, research, government legislation, and Supreme Court precedent.

Functional capacity evaluation testers consistently express concerns that they may be deposed or called to testify based on the results of their FCE. The various reasons you might perform an FCE have varying levels of risk as it relates to you being asked to answer the legal question associated with that FCE. If and when your FCE crosses over into the legal arena and you are asked to present your findings in deposition, or as an expert, you need to know if your results will hold up in a court of law and whether you are practicing in a Frye Standard or a Daubert Standard state.

If you are practicing in a Frye Standard state your FCE has to be interpreted by the courts to have been “generally accepted” by a meaningful segment of the scientific community. The remaining Frye Standard states include: California, Illinois, Maryland, New Jersey, Pennsylvania and Washington.

The Daubert Standard is used in federal cases and in all of the remaining states. For your FCE is to be admitted as evidence in a Daubert Standard state the following criteria need to be met.

  • The methodology must have been or could be tested empirically
  • The methodology must have been subjected to peer review and publication
  • The methodology has a known or potential error rate
  • The methodology has been accepted within the relevant scientific community.

To satisfy the empirical testing criteria your FCE would need to have been scientifically tested in regards to intra-rater and inter-rater reliability as well as various types of validity. This scientific research then needs to be available for your peers to read the research. The sensitivity and specificity of the tool needs to be known and overall your FCE needs to have been accepted within the relevant FCE scientific community.

There is no perfect functional capacity evaluation testing system on the open market. There are quite a few good ones. Many medical practices make up their own FCE and base it off of previously researched testing items but rarely perform empirically based research on their overall battery of tests.

The challenge with FCEs as a whole is their lack of full validity in all areas. One of the areas that is of concern in regards to FCEs is content validity. Content validity is defined as performing a scientific based evaluation that verifies that the method of FCE measurement actually measures what it is supposed to measure. The reason that FCEs lack content validity is because when taught how to perform a standard FCE, a clinician is told to use some apparatus within the test to perform lifting. Sometimes it is a milk crate, a wooden box, an isometric force gauge, or even some box with handles. The problem with standard FCEs and content validity is that if the tester does not attempt to closely approximate the apparatus used on the job including the forces, biomechanical movements, and repetitions, it would be difficult to obtain a high level of content validity. A FCE tester should never rely specifically on the standard method and equipment they were told to use in the FCE certification course and should always modify their FCE to use equipment that as closely as possible approximates the equipment used on the job.

This was evident in the recent court case in United States Court of Appeals 9th Circuit. In Indergard v. Georgia Pacific the functional capacity evaluation methods were called into question. There were standard tests done in this FCE that could not be attributed to an essential function of the job. The patient being tested did not pass the standardized tests and thus was denied employment. Upon further review by the courts, some of the tests that were not passed could not be pinned to an essential function of the job and thus raised many questions.

The Americans with Disabilities Act of 1990 and as Amended in 2008 should also cause functional capacity evaluation testers to take pause. One of the primary changes this legislation has done for FCE testers is stress the importance of employer accommodation. When performing a job specific functional capacity evaluation you should be acutely aware of the bridge between abilities, limitations and making job accommodation recommendations. FCE testers could take a job specific FCE a step further and recommend a job accommodation analysis in their recommendations. This may help protect the employer from questionable practices associated with the amended ADA due to that employer not looking at accommodation potential.

The early design of a patient’s ability to perform lifting, carrying, pushing and pulling testing was loosely designed based off the 1978 research project performed by Snook, S. H., titled “The Design of Manual Handling Tasks”. This research was performed psychophysically, meaning that “Subjects were given control of either weight or force variable”. The first FCEs were also performed based on a psychophysical approach in which the patients were given control of how much they felt they would be able to lift, carry, push and or pull. Other measures were put into place to determine if the amount of weight they performed could be deemed their maximum output. As research and general advances in medicine occurred, FCEs began incorporating a kinesiophysical approach in which a patient’s ability was determined based on biomechanical changes/deficits. From a practical perspective, this is considered the means in which the clinician is looking to see a kinesiophysical endpoint during testing. No matter which approach you have been trained in, all approaches use a combination of both psychophysical and kinesiophysical to come to the endpoint of this medical test. It has been argued that the more kinesiophysical your approach is, the more your test can be deemed a medical test.

Functional capacity evaluations as a whole have progressed significantly since the early 1980’s and they require further research and improvement. Never pick one training session or approach to learn how to perform FCEs. Every approach and course provides excellent knowledge to improve your skills as an expert functional capacity evaluation tester.

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