No Escape – An FCE Story

A Functional Capacity Evaluation (“FCE”) for the sole purpose of providing an impairment rating is not the employer’s responsibility. Founded on the idea that a visit to a physician for the sole purpose of obtaining a disability rating does not constitute “necessary medical treatment” under Virginia Code § 65.2-603, this principle is well-settled in the jurisprudence of the Virginia Workers’ Compensation Commission. That is, until recently.

In defiance of its own precedent and the doctrine of stare decisis, the Commission has reversed course. In what can only be explained as a case of claimant friendly judicial activism, the Full Commission (Opinion written by Commissioner Newman) recently held, in Elliott v. Sam Green Vault Corporation, JCN VA00001108316 (Oct. 5, 2021), that the employer was responsible for payment of an FCE ordered by the claimant’s treating physician for the sole purpose of assessing permanency.

The claimant, injured on August 16, 2015, had been working his regular job as a grave digger without specified restrictions since December 15, 2015. Still experiencing occasional complaints years later, the claimant returned to his treating physician on May 11, 2020. The physician, declaring the claimant at maximum medical improvement, ordered an FCE with impairment rating, noting that “[n]o other intervention” was planned.

The Full Commission, briefly acknowledging its prior precedent and that the sole purpose of the FCE was to assign a permanency rating, quickly turned its sights on fabricating a framework into which “the employer is responsible” fits. The Commission identified four pillars of this new framework, i.e. four grounds for its reversal of course, summarized as follows:

  1. Consistent with the “Act’s fundamental premise that the financial burden resulting from a worker’s compensable accident or disease be borne by industry,” an injured worker should not be made to bear the expense of securing a benefit expressly provided for by the Act.
  2. A declaration that an FCE for the sole purpose of assessing permanency does constitute “necessary medical treatment.” The Commission reached this conclusion based on two factors: (a) necessary medical attention is not limited to “only that care which advances the claimant on the path to recovery,” citing transportation to and from medical care as one such example, and (b) an FCE is considered medical treatment, under Va. Code § 65.2-603(B), in the context of employers’ applications seeking to terminate compensation.
  3. Fundamental fairness requires that, since an FCE is considered medical treatment under § 65.2-603, it must be considered medical treatment “when it is needed for the claimant to secure compensation justly due under the Act.”
  4. “[H]olding an employer liable for an evaluation of the claimant’s permanent disability promotes our charge to administer the Act and to adjudicate issues and controversies . . . [and] serves the interests of all parties, including employers.” The logic here is based on efficiency. If an employer refuses payment of an FCE ordered by a treating physician, the claimant will likely seek out a friendly rating from another physician. The employer, in turn, will finance an FCE from a defense-friendly physician. The Commission, then, is left to “weigh wildly disparate ratings from competing professionals.”

While these four principles seem logical at first glance, they do not plausibly justify, and thereby the majority does not plausibly justify, holding the employer responsible. Commissioner Rappaport, unfortunately in a dissenting opinion, got it right. He strongly disagreed with the Majority, finding the departure from Commission precedent unjustifiable. It is and always has been the claimant’s burden “to demonstrate that the treatment for which he seeks payment is causally related to the accident, necessary for the treatment of his compensable injury, and recommended by an authorized treating physician.”

An FCE for the sole purpose of a permanency rating is simply not medically necessary. As Commissioner Rappaport put it, “[s]eeking to ascertain an injured employee’s work restrictions and capabilities is necessary medical treatment. Determining whether the claimant may have a ratable permanent partial impairment is not.” This was not a case where the treating physician ordered the FCE to determine the claimant’s work capabilities, as the claimant had been working without specified restrictions since 2015. The sole purpose of the ordered FCE was to secure a permanency rating, and that is simply not necessary medical treatment.

It remains to be seen if this Opinion will be appealed. For the time being, though, it appears that employers will be responsible for these FCEs moving forward. Challenging this new rule when the opportunity presents itself, however, may be worthwhile.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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