Subscribe by RSS
Subscribe by EmailMore on functional capacity and similar testing
I’ve noticed quite a number of continuing hits on this post from the end of February: “EEOC prevails in disparate impact gender case involving physical strength test”
I’m not sure where they’re all coming from; perhaps just Google searches about that case. In any event, I thought I’d do a little Internet research to see what else I could find on the topic for my readers. (Yeah, I could do a thorough research job on Westlaw and write a memorandum of law, but I only do that for pay ;-) )
I found a few items of interest. At the end, I found a medical study that would make a skeptic of anyone (don’t miss it).
First, an employee-sympathetic (but very well-written and logical) summary of a Third Circuit case involving physical testing of transit police officers:
“WHAT DEFINES “BUSINESS NECESSITY” IN THE DISCRIMINATION CONTEXT?
A Federal Appellate Case Grapples With How Fast Transit Police Officers Must Run”
By JOANNA GROSSMAN (Findlaw’s Writ)
Finally, after two trips to the Court of Appeals (likely 100’s of thousands in legal fees), the test at issue in this case was deemed acceptable despite disparate impact on women. (Was the litigation worth it?)
Ms. Grossman offers a number of well-put criticisms of this result.
For example:
[T]he fitness requirement was not used to disqualify existing transit officers, many of whom could not satisfy it. Incumbent officers were given incentives to meet the goal. Yet there were no consequences for failing.Obviously - unless SEPTA viewed all those who failed as unqualified - the test was not in fact a “minimum qualification” necessary for performance of the job. Indeed, many officers who failed did their jobs nonetheless. (One female officer who had failed the fitness test, but been hired by mistake, was even repeatedly commended for her work.)
The article also gives a nice law professor’s short course on the legal issues involved (Ms. Grossman is a law prof.)
Next, I encountered a number of websites of companies offering services related to such testing, both for post-offer, preemployment testing and for return to work purposes.
I’m giving just a few examples (not chosen for any special reason); to find many more run the Google search “functional capacity evaluation”
My suggestions: Note that these providers’ services include research into the demands of the specific job, and often preparation of detailed job descriptions, as part and parcel of the test development process. This is essential. There are no short cuts if you want a legally defensible test.
It is also essential that the provider have a qualified expert witness available. This means one who is not only an expert, but also an experienced, credible witness who can explain technical issues relatively simply.
So a key question is how many lawsuits (or arbitrations) the comapny have been involved in, and how they have fared in defending the validity of the testing. It may even be desirable to review a witness’s deposition transcript.
And, oh yeah, I have this question: Is the underlying theory really valid?
6 pages into my Google results, I finally got past the commercial sites and hit pay dirt with this:
Spine — an International Journal for the Study of the Spine: “The Prognostic Value of Functional Capacity Evaluation in Patients With Chronic Low Back Pain: Part 2: Sustained Recovery” (abstract)
Objectives. We investigated the ability of the Isernhagen Work Systems’ Functional Capacity Evaluation to predict sustained recovery. . . .
Methods. Workers’ compensation claimants who underwent Functional Capacity Evaluation following low back injury and subsequently demonstrated recovery in the form of suspension of total temporary disability benefits or claim closure were studied.
The number of failed tasks and performance on the floor-to-waist lift task in the protocol were used as indicators of Functional Capacity Evaluation performance.
Indicators of sustained recovery included whether or not total temporary disability benefits restarted, the claim was reopened, or a new back claim was filed. . . .
Results. Overall, 46 of 226 patients (20%) experienced a recurrent back-related event within the year following Functional Capacity Evaluation.
Opposite to the initial hypothesis, a lower number of failed Functional Capacity Evaluation tasks was consistently associated with higher risk of recurrence after controlling for potential confounding variables. Performance on the floor-to-waist lift task was not related to future recurrence.
Conclusions. Contrary to Functional Capacity Evaluation theory, better Functional Capacity Evaluation performance as indicated by a lower number of failed tasks was associated with higher risk of recurrence.
The validity of Functional Capacity Evaluation’s purported ability to identify claimants who are “safe” to return to work is suspect.
Perhaps many of the people who try very hard and thus do well on the test are the very people who are most likely to overdo it repeatedly when working, reinjuring themselves.
Or perhaps they prefer to draw comp benefits rather than work.
Note also that this study involved return-to-work evaluation, not prehire.
In any event, this study is just a slice of the reality. No doubt the providers have many other contrary studies supporting FCE’s.
The bottom line is that FCE’s are popular for a reason, and it’s likely more than just good marketing by these providers. But before plunging into a program relying on FCE’s, employers should recognize the potential for litigation and weigh into the cost-benefit analysis the risk-weighted cost of litigation.
E.g., a guesstimated 10% chance of legal challenge @ average cost (fees plus settlement/judgment) of $1 million means you add $100,000 to the cost side of the equation.
Less disillusioning perhaps is this Physical Therapy journal article, which sounds potentially useful to employers looking for a provider for such testing:
“A Critical Review of Functional Capacity Evaluations”
The role of functional capacity evaluations (FCEs) appears to be increasing as employers and insurers rely more heavily on them for decision making.To meet credibility requirements, and the American Physical Therapy Association’s standards for measurement and documentation, all FCE suppliers need to validate and refine their systems.
This article provides information that can be used to make informed decisions in the selection of an FCE and in functional assessment practices. Features of well-designed FCEs are discussed. Ten well-known FCE systems are analyzed according to these features and other common characteristics.
Current issues such as the qualifications of the evaluators, reliability and validity, length of assessments, projection of endurance to 8-hour workdays, standards of practice, safety protocols, and behavioral assessment and management strategies are discussed.
Both these journals would be good places to look for more relevant scientific research on the topic.
Sphere: Related Content
Related Posts
If you enjoyed this post, please consider leaving a comment or subscribing.
Comments
I am an occupational therapist with 13 years of FCE experience. I am doing more and more legal work for PIP, W/C, and malpractice using my FCE system. I recently had a debate over the reliability and validity of FCE’s. What it boils down to is this:
1. NO ONE will EVER be able to control every variable that affects human function. There are too many when you consider physical, cognitive, and psychoemotional aspects.
2. There are many types of FCE systems on the market. They are only as good as the therapist administering the tests. The judgement of an experienced therapist far outweighs the “computer” or “protocols” being administered. The therapists need to have good common sense and an abundance of experience dealing with patients in a therapeutic setting so that they know what affects function. They can’t just be evaluators.They have to have flexibility in knowing what tests are appropriate to use for what diagnoses, etc. Every single sub-test used in FCE’s has strengths and weaknesses and should be chosen appropriately.
3.All FCE’s are subjective to a certain extent. They will NEVER be 100% valid or reliable, but some are better than others.
4. An attorney once said they are useless. I say, somebody has to evaluate function. Don’t think for a moment we should leave that task up to the physicians who spend 15 minutes a session with these patients. A well trained, experienced OT or PT should be your choice. Not an exercise physiologist or assistant.
5. Here’s another example: MRI’s don’t always diagnose accurately. Do we stop ordering MRI’s? I don’t think so.
“There are many types of FCE systems on the market. They are only as good as the therapist administering the tests.”
This points out one, of the many problems with functional capacity testing. If an experienced therapist administers the test the result could be different if an inexperienced therapist administers the same test to the same group of people. This means that the actual test is much more subjective than advertised. It also raises questions about both the validity and reliability of the test. In sharp contrast, a valid physical ability test will not show these differences. No matter who administers the test, someone that can run the 100-yard dash in 12 seconds will have the same score regardless of the timekeeper.
Functional capacity evaluations are fraught with problems. As far as I have seen, no FCE has never been validated for any job. If this is not the case, I would appreciate a link or post that points to such a validation study. I would also like to know what PT and OT journals publish these validation studies.
One of the problems with FCEs is that they are sold and administered by persons who are mostly (although not always) unfamiliar with professional validation requirements. It is rare to find PTs or OTs who can provide a good explanation as to how the Standards or Principles are met by their tests. Indeed, these guidelines are almost never encountered in the advertising literature associated with FCEs.
Validation under the UGESP means at least two different things: test validity and predictive validity. This is not the same as having a couple of test administrators agree about a test result. And this is why, to my knowledge, no Functional Capacity Evaluation has ever been validated for any job.
Even within the literature, FCEs are criticized. For example, this Study reviewed several FCEs and finds them all largely lacking in validity and reliability evidence. The same is true for this 2004 study and for this study.
Functional capacity advertisers and practitioners need to answer these questions:
1. How do you document how well your test predicts job success?
2. How do you know that all those who fail your test cannot perform the job?
3. How do you prove that your test is job-related and consistent with business necessity?
Gene Carmean
med-tox.com
Mr. Lawson, in the first thread above, states:
In the SEPTA case, duh….the test was something the officers almost never had to do. there are many functional things officers have to do daily that could have been tested, but they chose running?!
But if you read the SEPTA case you will find that they really did have to run and, SEPTA prevailed by winning their case against the DOJ!!!
Gene Carmean
http://www.med-tox.com
first, i’m not an attorney, but a physical therapist who has been doing both FCEs and pre-hire functional tests for over 10 yrs. i use a protocol that has been well-tested for over 15 yrs with NO EEOC or other “discrminitation-type” cases.
the key is this…..in contrast to your article by grossman regarding the Lanning vs. SEPTA case (http://caselaw.lp.findlaw.com/data2/circs/3rd/011040p.pdf)
any good “functional” employment testing program looks at function and more importantly job-specific function. In the SEPTA case, duh….the test was something the officers almost never had to do. there are many functional things officers have to do daily that could have been tested, but they chose running?!
our test for officers involves establishing a medically risk-free test participant, then basic cardio screens, strength tests, then JOB-SPECIFIC TESTS including dragging a dummy, climbing over a 5-foot fence/wall, etc…..
common sense must reign in these programs. you constantly hear of those rare cases where functional testing was ruled discriminitory or otherwise illegal….those cases almost always really stupid things done in the testing….
check out the recent DIAL SOAP case in in Indiana….the lady had to reach up high, she was short. she did the lift, but had to go onto her tippy-toes to do it…..she got a fail score….that’s just plain dumb.
perhaps you’d like to know more about the 1000s of employers nationwide who have done more than 1 million tests using our protocol with no losses like this.
the companies save an avg of 50% in the first year after implementing this protocol. check it out….www.worksteps.com