FCE and the Expert Witness

1. FCE and the Expert Witness WorkWell Prevention & Care

2. Content of theWebinar The information contained in today’s webinar comes from attorneys who have experience in the field of Workers’ Compensation/Return-to-Work, the experiences of fellow PTs and OTs who have testified in depositions and in court, and from critiques of several hundred FCE reports.

3. Learning Objectives • Upon completion of this webinar participants will understand: • The participants in the deposition/courtroom and their roles • How to dress for court • How to conduct yourself in a deposition and in court • How to answer questions in a deposition and in court • The importance of your FCE report • What to include and not include in your FCE report • The pitfalls of, and correct process for, correcting FCE reports and supporting notes (score sheets)

4. Today’sFormat • The webinar is divided into 3 sections: • FCE Reports (and all medical records) on Trial • Expert Witness Testimony • Preparing Yourself for Court • Time does not allow for discussion. Please e-mail your questions and/or comments regarding your experience to smckenney@workwell.com • and I will send the comments, questions, and answers to all participants. • The presentation will be posted to the Provider Resource Center on or about March 15.

5. FCE Reports On Trial

6. FCE Reports onTrial • Introduction • Always document your FCE report as if it were being • prepared for court. • FCE reports can be essential to the resolution of legal actions. • Worker’s compensation • Disability • Personal injury • You may be called to testify months or years after the FCE. • Do not assume you can rely on your memory. • Your documentation is your memory and the only credible evidence of what happened.

7. FCE Reports onTrial • Guidelines • During the FCE, clear communication between therapist • and client is of the utmost importance. • The contents of your report should not come as a surprise to your client. • Your supporting documentation (notes) may be needed to • support your testimony. • A momentary lapse in documentation may come back to haunt you. • The FCE report is first a medical document, but becomes a legal • document in court. • A poorly written report can make an excellent FCE appear to have been a poor FCE.

8. FCE Reports onTrial • Guidelines – cont’d • Defensible FCE reports: • Are objective and factual in nature • Avoid words like “appeared” and “seemed” • Describe specific findings, clinical observations, and test results • Do not include inconsistent/contradictory statements • “Self-limited” and “unable” to describe the same subtest. • The FCE report can invariably be the most important factor in a legal case. • All else pales in comparison. • Your credentials • Your personality • Your reputation

9. FCE Reports onTrial • Guidelines - cont’d • How can a PT/OT document the functional abilities/limitations of a client to ensure the legal defensibility of the FCE • report? • Think of your documentation as a replay of what transpired during the FCE. • The FCE report should create a visual image of what • happened.

10. FCE Reports onTrial • Guidelines - cont’d • Documentation delays cause trouble. • A PT/OT who takes days or weeks to complete an FCE report may be vulnerable if the report is scrutinized by an attorney. • An attorney may challenge whether you could remember details of the FCE and the client’s response when there was a delay between the FCE and the written report. • Delays could be made to appear negligent, sloppy, and a reflection of other inadequacies on your part.

11. FCE Reports onTrial • Guidelines - cont’d • Legibility • Handwritten score sheets must be legible and should contain only standard abbreviations. • An illegibly handwritten entry may be misinterpreted (on the stand). • Using WorkWell’s online data entry system is your best defense • (when proofread, of course). • Carelessly written and poorly punctuated FCE reports may be responsible for: • inaccurate reports of a client’s abilities and limitations • inaccurate reports of a client’s job requirements • Client’s diagnoses and history of injuries • NOTE: The JCAH recommends that abbreviations not be used.

12. FCE Reports onTrial • Guidelines - cont’d • Alterations to score sheets and/or final FCE report • Crossing out, writing over an entry, using correction fluid, or adding marginal notes to explain “what you really meant” should not be done. • Alterations to any portion of the report can destroy your credibility! • Especially if you have already submitted the report. • If you receive a request for clarification, write it as a • separate addendum to the FCE report.

13. FCE Reports onTrial • Guidelines - cont’d • Clear and concise documentation is essential • Document observations, HR, effort level, physical limitations, reported or c/o pain, etc. • Always use objective language (unless quoting the client and then • use quotation marks). • Subjective language (yours) could be criticized and disputed. • Again, do not use “seemed” or “appeared” • Document the objective facts (observed and measured).

14. FCE Reports onTrial • Guidelines - cont’d • Omissions • Information left out of the FCE report can sometimes be more damaging than information included in the report. • Not entering information can damage the credibility of the report. • Omitted or inaccurate dates • Omitted test results • Overlooked or omitted negative responses by clients • Failure to note self-limitation or refusal • Do not omit documentation of observations of client safety • and/or correction of unsafe performance.

15. FCE Reports onTrial • Guidelines - cont’d • Reports of what the client said • Use sound professional judgment when documenting a client’s comments. • Make sure they are pertinent to the FCE. • Comments can be misinterpreted by whoever is reading your report, especially when taken out of context.

16. FCE Reports onTrial • Guidelines - cont’d • Previous Conditions • Document secondary diagnoses and/or previous conditions. • Failure to document and to monitor these conditions could be • considered negligence. • Do not give the impression you are ignoring all but the primary diagnosis for which you are seeing the client. • Clearly document what limiting factors are related to a physical limitation. • Insurance companies may need to know if the claimant is limited by the covered injury (claim) or by a different condition.

17. FCE Reports onTrial • Guidelines-cont’d • Previous Conditions –cont’d. • Follow APTA/AOTA guidelines for functionaltesting. • Performance of full body function (FCE) without examination offull • body integrity can lead to injury and/or inaccurateresults. • The physical assessment should include, atleast: • History • Physicalexam • Special tests as determined by thePT/OT

18. FCE Reports onTrial • Guidelines-cont’d • Documenting Adverse Occurrences • This is crucial to the defense of a negligence claim (againstyou). • Adverse client occurrences mayinclude: • Injuries fromequipment • Slips, trips,falls • Overexertion of strainedtissues • Injuries resulting from improper performance of FCEsubtests • Document the adverse occurrence concisely andobjectively. • Record only factualinformation. • Do not documentopinions. • Follow clinic P&Ps for recordingincidents.

19. FCE Reports onTrial • Conclusion • Never underestimate the importance of the FCE report and its use as a legal document. • Never underestimate the importance of objective, clear, concise documentation of observations, measurements, and the physical examination specific to the diagnosis (beyond the standard physical examination). • Clearly separate the subjective from the objective. • – Yours as well as your client’s.

20. ExpertWitnessTestimony

21. Introduction to Expert WitnessTestimony As you have surmised by now, the best preparation for legal testimony is a well written, concise FCE report. As we go through the remaining slides, you will see examples of questions attorneys could ask. Think of additional questions, especially if from your own experience as an expert witness, and please e-mail them to steve.mckenney@workwellpc.com. Questions and answers will be sent to all participants.

22. Expert WitnessTestimony • The Deposition • Part of the “discovery” process (for the attorneys and for • you). • No judge is present. • Attorneys are present. • Court reporter is present. • Your statements are under oath. • The purpose of a deposition is to determine the facts (what is your message?). • Does not take place in a courtroom. • Attorney’s office • A meeting room in your facility

23. Expert WitnessTestimony • The Deposition - cont’d • Attorneys ask you about your conclusions and the basis of your conclusions. • They also try to “discover” your demeanor: • Are you confident about your report? • Can you be led, influenced, or swayed? • How do you respond to niceness and meanness? • Are you patient or impatient? • Etc.

24. Expert WitnessTestimony • The Deposition – cont’d • The attorney may go through your FCE report with you line • by line. Why? • The attorney wants to discover how well you “know your stuff”. • The attorney wants to discover if you will contradict yourself. • If you give a different answer at trial, s/he will pull out the deposition • transcript and show the difference. • The attorney wants you to educate him/her in preparation for trial. • Our chief legal reference says most attorneys will not admit this • NOTE: If your FCE report is written according to the highest standards, the case will likely not proceed beyond the deposition, if it even goes that far.

25. Expert WitnessTestimony • The courtroom and basic legalprinciples • You will wait in the hallway outside thecourtroom. • The bailiff will come out and call yourname. • You will go to the witnessstand. • You will be swornin.

26. Expert WitnessTestimony • The courtroom and basic legal principles - cont’d • The layout is symbolic of our legal system. • A railing (the “bar”) separates the court from the spectators. • Judge’s bench – the highest structure in the room • Witness stand and jury box – next highest • Tables for attorneys, plaintiff, defendant – floor level • Court reporter – floor level • Clerk’s desk – floor level • Bailiff (sergeant at arms) – floor level

27. Expert WitnessTestimony • Your demeanor in court is critically important. • Affect and dress are very important in being a credible • witness. • Professional demeanor and “business” attire • Be personable and attentive • Make eye contact, but with the attorney or the jury? • – In a pretrial meeting or phone call, ask your attorney to instruct you on when to look at him/her and when to look at the jury. • Do not get defensive or angry! • The jury may perceive you to be argumentative. Instead, be confident and self assured.

28. Expert WitnessTestimony • Answer the atty’s questions and ONLY the atty’s questions. • Do not expand on the questions. • Do not anticipate the next question and then attempt to answer it before it is asked. • Remember, your FCE report contains the answers, so do not offer extraneous information. • If you do not understand the question, or if multiple questions are rolled into one, do not be afraid to ask him/her to repeat or restate it.

29. Expert WitnessTestimony • What questions should you expect from theattorneys? • Your educationalbackground. • Prerequisiteeducation • Professionaleducation • If you “moved around” from school to school, s/he may try to presentit • as aproblem. • Grades • Bestclass • Worstclass • Favorite classes and/orprofessors • Problems inschool

30. Expert WitnessTestimony • What questions should you expect from theattorneys? • Your professional credentials andexperience. • Professional position andtitle • Licensure • Now and in thepast • Goodstanding? Problems? Disciplinaryactions? • Explain factually and do not blame someone else or play thevictim. • How many years at currentjob? • Movedaround? • When/where/how were you trained inFCE? • WW faculty, standardized, training manual, annual credentialing andQA. • Have you submitted reports to WorkWell to becritiqued? • What were theoutcomes?

31. Expert WitnessTestimony • What questions should you expect from the attorneys? • What is an FCE? • A comprehensive objective test of an individual’s ability to perform work- • related tasks. • Who decides what tests are included? • WorkWell FCE protocols • US Dept of Labor “20 physical demands of work” • Who decides Rarely, Occasionally, Frequently? • The trained therapist based on: • Internationally researched testing protocols • Internationally researched observation criteria • Who decides if the client is working safely or unsafely? • The trained therapist based on professionally accepted body mechanics principles and physiologic responses.

32. Expert WitnessTestimony • What questions should you expect from the attorneys? • Aren’t machines the only way to get objective information? • Machines test only isolated components of function, not overall • function. • Knee extensors, hip flexors, shoulder extensors, elbow flexors, etc. • But muscles and joints work together to perform real world functions. • The WorkWell FCE tests overall/whole body/“real world” function. • An advantage over machine-based approaches. • As for objective information: • Therapists, not machines, have the expertise required to recognize and evaluate function, including normal and abnormal responses to activities. • Does your report reflect your client’s abilities today? • It reflects his/her abilities measured on the date of the FCE.

33. Expert WitnessTestimony • What questions should you expect from the attorneys? • Who paid for the FCE? • Insurance (or whomever). • A referral does not make you an agent of the referring company. • You are an independent professional evaluator. • How much are you being paid for your testimony? • You are not being paid for your testimony. • Saying you are being paid for your testimony can be manipulated to sound as if you are being paid to say what someone wants you to say. • You are being paid for your time. • If pressed, you can state your hourly rate for appearing. • Be sure to explain that your clinic/employer is being reimbursed for your time, not you personally.

34. Expert WitnessTestimony Remember: One attorney wants to challenge your FCE report. The other attorney wants to defend your FCE report. With that in mind, let’s talk about how to prepare your FCE report, and yourself, so that both are difficult to challenge and easy to defend.

35. Preparing Yourself and your FCE Report for Court

36. Preparing Yourself forCourt • An Important Reminder: • In the autumn of 2005, a team of independent international researchers who had researched the WorkWell FCE met in Chicago for the purpose of applying their research to enhance the FCE. The result was the WorkWell FCE V.2. • Most of WorkWell’s providers have upgraded to FCE V.2. • If you have not, you may be asked why not.

37. Preparing Yourself forCourt The FCE Report Keep the following statement in mind as you document all medical records. It will serve you well. “A good FCE report does not raise questions, it answers questions.”

38. Preparing Yourself forCourt • The FCE Report • Follow the WorkWell FCE report format. • At the very least, include the same information in your FCE report format. • Some pre-internet providers created templates that do this. • Do not use V.1 subtest names when doing V.2. • Document online – best practice. • If you cannot document online, use the report CD you got • when you upgraded to FCE V.2.

39. Preparing Yourself forCourt • The FCE Report • The Client History • Document which information came from your client and which came from medical records. • Include dates of injuries, illnesses, surgeries, etc. • Prepare to be asked if you are aware of any additional history. • If client or medical record mentions medical restrictions: • Verify them with the physician who imposed them and document. • Ask if they must be observed during the FCE. • If you cannot contact the physician of record, either: • Postpone the FCE until you can. • Proceed with the FCE and observe the restrictions.

40. Preparing Yourself forCourt • The FCE Report • The Physical Exam • Information is used to: • Discover contraindications/determine if client is safe to proceed. • Compare with results of FCE subtests for consistency. • Forewarn you of possible difficulties with specific subtests. • Prepare you for possible subtest modifications. • Do not exclude a subtest before client attempts it (squat and F-W lift). • Follow WorkWell’s physical exam process. • Skipping even seemingly unrelated items may cause you to miss “problem areas” and/or lose the ability to check consistency with FCE subtests.

41. Preparing Yourself forCourt • The FCE Report • The Physical Exam – cont’d. • Measure height, weight, A/PROM (deficits), edema. • If you do not, the attorney may ask if you “guessed” or “simply took your client’s word” for this and any other information in your FCE report. • Use a goniometer for impaired joint(s), at least. • If you “eyeball” AROM, be prepared to defend your ability to do so and to state why it is OK to “violate” professional measuring standards. • You should be OK in the eyes of the jury if you explain that you measured the affected/impaired joint(s) and any others with AROM less than WNL/WFL.

42. Preparing Yourself forCourt • The FCE Report • The Physical Exam – cont’d. • Include the “1st Day Summary of Physical Assessment”. It should coincide with individual exam items. • Posture eval • AROM • MMT • NOTE: Be prepared to explain MMT. • Another NOTE: Be careful not to mix up Right, Left, and Bilateral • Balance • Sensation • Self-Report questionnaires (interpretation of raw scores)

43. Preparing Yourself forCourt • The FCE Report • The Physical Exam – cont’d. • Self-Report Questionnaires (SRQs) • SFS, FABQ, OREBRO, NDI, OSWESTRY, etc. • In general, these are measurements of the client’s perception of how • his/her diagnosis affects him/her in everyday life. • There are no right or wrong answers. • SRQs give you a “heads up” about how the client perceives his/her abilities. • But they should not bias you in terms of an expected FCE outcome. • SRQs can be excellent educational tools for clients. • Some believe they are worse off than the FCE shows. • Some believe they are better off than the FCE shows.

44. Preparing Yourself forCourt • The FCE Report • The Test Results and Interpretation grid (FCE grid) • Again, be prepared to answer questions about testing protocols and determination of frequencies. • Refer to the FCE manual (bring it with you – research is included in bibliography) • Time limits • Reps • Distances • Effort levels • Observation criteria

45. Preparing Yourself forCourt • The FCE Report • The Test Results and Interpretation grid – cont’d. • Base your frequency projections on WorkWell protocols. • Remember, frequency guidelines are rather broad ranges and based on multiple observations as well as test results. • Document your client’s physical limitations. • Document what you observed, but explain the observed behaviors: • Fatigue/weakness (HR, pace slowed, began to struggle, etc.) • Asymmetrical movements due to… • Deteriorating movement patterns due to… • Limited AROM • Reported pain is subjective – cannot be measured.

46. Preparing Yourself forCourt • The FCEReport • The Test Results and Interpretation grid –cont’d. • If reported pain is the limitingfactor: • Does the level of pain coincidewith: • the subtest beingperformed? • the level ofeffort? • pain reports during similarsubtests? • the “client’s diagnosis and physicalfindings”? • Do observations substantiate pain as a limitingfactor? • Asymmetrical movement patterns, for example • Limpingincreases • Shifting weight away from painfularea • Unequal shoulderelevation • HRincreased

47. Preparing Yourself forCourt • The FCE Report • The Test Results and Interpretation grid – cont’d. • If your client self-limited: • Follow the documentation protocols and example reports in the FCE manual/handbook (client’s name is Liz Lanier) • Be prepared to explain what self-limitation means: • Client did not give full effort as evidenced by: • lack of physiologic responses – HR, respirations, muscle tension, etc. • reiterate observation criteria – accessory muscles, counterbalancing, etc. • Self-limitation is often evidenced by what you did not see. • Could document in Pain Report section of the Summary Report what you expected to see if client had given full effort.

48. Preparing Yourself forCourt • The FCEReport • The Test Results and Interpretation grid –cont’d. • Correlating frequencies of relatedsubtests • Walking frequencyaffects: • Carrying • Stairclimbing • Ladderclimbing • These frequencies cannot exceed that ofwalking. • Standing work frequencyaffects: • Lifting • Forward bending –standing • These frequencies cannot exceed that of standingwork.

49. Preparing Yourself forCourt • The FCE Report • The Test Results and Interpretation grid – cont’d. • If you adjust frequencies of carrying and/or stair climbing and/or ladder climbing to correlate with that of walking: • The limitations section should include a statement such as, • “Frequency is limited by walking ability.” • If you adjust frequencies of lifting and/or forward bending- • standing to correlate with that of standing work: • The limitations section should include a statement such as, “Frequency is limited by standing work ability.”

50. Preparing Yourself forCourt The FCE Report • The Summary Report • The Summary Report should include a full summary of all of the pertinent results of the FCE. • History, physical exam, and subtests • This is where you can expand on observations, self-limitation, pain • reports, safety, consistency, etc. • A good Summary Report is thorough and consistent with all other sections of the FCE report. • Did you report self-limitation here, but not on the FCE grid? • Did you report self-limitation on the grid, but say s/he “gave max effort” or “limitations are consistent with impairments” here?