Validity of Effort

Many of you learned to perform FCEs via a process I call “clinical mythology.” As a student or young physical or occupational therapist, your clinical instructor/mentor taught you how to perform these tests using their own particular “method”– not following any standardized process or using any procedures supported by research.

And why not? Much of clinical learning occurs in this fashion. Many of our clinical tests and measures are passed along from one clinician to another using protocols much less precise than our grandmother’s recipe for pound cake that has been passed through the family for generations. That’s just how it happens.

And it works pretty well…for most things. Except that the results of FCEs are often used as evidence in workers’ compensation cases, whereas most of our other clinical measures are not. For FCEs, it behooves us to pay attention to the tests and protocols we use and the research that supports them.  If we end up on the witness stand and do not want to have our testimony dismissed, research supporting our tests and measures is important.

Bottom line, our reputation is at stake.

This is particularly true if our FCE reports include statements related to the level of effort the client expended during testing.

Level of Effort in FCEs

When clients/patients participate in an FCE and have pending legal action against their employer, we’re really asking them to testify against themselves if they do well on the FCE. It’s little wonder that some don’t give their full effort. In fact, it’s surprising that any of them do.

Over the years, clinicians have been asked to comment on the level of effort they believe the patient/client exerted during the test. Was it a full effort? Or did they stop themselves before a full effort was exerted? Did they perform consistently across multiple functional tasks, or were there significant inconsistencies? How were these determinations made? Purely subjectively? Based on specific validated measures?

Expect to be asked all these questions and more if you are deposed or asked to testify at a workers’ compensation trial. And even if you never testify, I know most of you want to sleep at night knowing that your testing and reporting was fair to the patient/client and the employer/insurance carrier. All of these parties have a substantial financial issue at stake.

An Important 2023 Legal Precedent

A 2023 legal case clearly illustrates the importance of using validated measures in an FCE and understanding the research that supports them.

A Florida Circuit Judge struck the bulk of the opinions of a physical therapist in a Jones Act personal injury case in Escambia County, Florida. The Order, dated August 3, 2023, can be accessed here.

The employer hired and paid the therapist to conduct a Functional Capacity Evaluation of a Deckhand injured on the job. The FCE lasted four hours, and the report indicated that the therapist conducted a “validity assessment” as part of the FCE.

Based on his “validity assessment,” the therapist reported that the injured Deckhand was faking symptoms. According to the therapist’s testimony in deposition (which can be accessed here), he makes similar claims of faking in 50% to 60% of his examinations of injured workers. He also admitted that most of the time, he is hired by employers, rather than by injured workers.

The Circuit Judge struck the therapist’s “validity assessment” opinions on the grounds that:

• His opinions were not “based on sufficient facts or data.”
• His opinions were not based on “reliable principles and methods."

The Circuit Judge ruled his “validity assessment” opinions were “unreliable after plaintiff attorneys pointed out that they have never been tested, never been subjected to peer review and publication, have no known rate of error, and are not generally accepted in any scientific community.”

The Circuit Judge also struck the therapist’s opinion on a medical issue because it “constitutes speculation.”

According to the therapist, the FCE system he used was also used by 240 clinics in 43 different states to conduct over 22,000 exams a year. This emphasizes that just because a test is widely used, it doesn’t make it valid.

What Were the Major Issues here?

There are numerous issues with how this Functional Capacity Evaluation was conducted, making it a clear example of the challenges that can arise when tests are not validated for the purpose for which they are being used. Several aspects related to testing, communication, and reporting could have been handled differently. To provide clarity, I’ve organized the concerns by category.

The therapist made claims that the patient was possibly “faking” and “exaggerating symptoms”, based on assumptions that are not supported by research:

1. Reporting high pain scores without an elevated heart rate. The literature does not support a correlation between pain scores and heart rate. (1)
2. Scoring positively on Waddell’s non-organic signs. Waddell’s non-organic signs were never intended to detect sincerity of effort. (1)
3. Showing a high coefficient of variation (CV) on grip strength tests (>15%). CVs are not a reliable and valid method for determining the sincerity of effort, and the 15% threshold is arbitrary. (1)
4. Isometric strength was not equal to his isotonic strength. Isometric and isotonic strength are not equal—they refer to different types of muscle contractions and measure different aspects of muscular performance. (2)
5. Demonstrating a reciprocal foot-over-foot pattern on stair and ladder climbing with severe pain. The effect of hand support during these tasks must be considered and severe pain does not always results in a step-to-gait pattern.
6. Cogwheeling during manual muscle testing. Cogwheeling during manual muscle testing (MMT) is not necessarily evidence of "faking it." Instead, it's a clinical sign most often associated with neurological conditions, particularly Parkinson’s disease and other extrapyramidal disorders. If cogwheeling appears in someone with no known neurological history, clinicians might consider that anxiety or heightened awareness, pain, or fear of pain as causative factors. Correlation with faking it cannot be assumed.
7. Differences in focused vs. distracted walking tolerance. Focused walking occurred on the treadmill at a determined cadence, while distracted walking did not. It’s important to compare apples to apples when looking for clinical inconsistencies.
8. Severe pain without opioid use. Needless to say, not everyone with severe pain is on opioids, and just because they’re not, it doesn’t discredit their pain

These conclusions drawn by the therapist regarding alleged “symptom exaggeration” and possible malingering lack support from established research.

Statements made by the therapist that may suggest a lack of objectivity include the following:

1. Claiming to have the capability of determining the amount of pain a patient experiences based on diagnosis.
2. Assuming all of the patient’s calf atrophy occurred due to his congenital club foot deformity and subsequent casting and surgery, rather than the work comp injury. Of course, this co-morbidity could have contributed to the calf atrophy. However, there is no way of knowing if this is true or how much.
3. Claiming to find validity issues in 50-60% of cases.
4. Stating that his charges were $10,000 for testing (most FCEs cost no more than $1500-$2000), traveling out of state, acquiring a PT license in a different state, and renting a facility to perform the test…all while there are likely numerous PT clinics nearby that could have performed the test for markedly lower costs.
5. Sending an email to the attorney requesting any surveillance videos that might have been taken.

Insufficient review and understanding of the medical history, accompanied by assumptions that appear to reflect bias in its interpretation.

1. Assuming that his pain should follow a nerve root distribution when the injury has been described as a crush injury.
2. Citing that cranial nerves innervate the great and second toes.
3. Failing to list all diagnoses and co-morbidities in the report. Listed diagnosis as “deep bone bruise” when others had reported it as a “crush injury with avascular necrosis, deep peroneal nerve compression, and complex regional pain syndrome.”
4. Not having a clear understanding of the mechanism of injury.
5. Failing to perform sensory testing in the presence of reports of numbness and loss of sensation.

How Can you AVOID These issues?

No one wants to be embarrassed by a negative reputation online or otherwise. And no one wants to be perceived as biased, towards either the plaintiff or defense side. Our ethical responsibility is to provide an objective third-party assessment regardless of the referral source.

To remain objective and avoid a reputation of being biased, I recommend the following:

1. Don’t promote yourself, either explicitly or implicitly, in your local workers’ compensation community as the “lie detector” for employees who are “faking it.” This might make you popular among insurance carriers and case managers for a short time. But it never lasts. And when it all comes crashing down, it isn’t pretty. I’ve seen it happen more than once. Plaintiff attorneys are educated regarding validated vs. unvalidated tests and measures.
2. Conduct FCEs for both employers and employee plaintiffs. You want a neutral, objective reputation. Seek referrals from various sources: insurance carriers, case managers, physicians, and both plaintiff and defense attorneys.
3. Use protocols you can defend. Examine the research behind your organization's FCE, and if it lacks validation in the published peer-reviewed literature, bring that to the attention of your executive team. Consider a change.
4. Know and understand the research supporting your test. Practice explaining the research to one of your colleagues before you are deposed or testify. If you use a commercially available FCE, consult with the vendor to fully understand the research.
5. Avoid accusatory language in your reports. Terms like “symptom magnifier,” “faker,” and “exaggerating symptoms” typically can’t be substantiated and will discredit your professionalism and reputation. Instead, state your observations objectively:
   1. “Noted to stop before a maximum effort was observed on ___ out of ___ tasks.”
   2. “The following clinical inconsistencies were noted: _____, ______,  and _____.”
   3. “Scored ______ on validated formal consistency of effort tests.”
6. If you use formal consistency of effort testing, make sure it has been validated through research. Cite that research in the footnotes section of your reports, and be capable of accurately explaining these tests and their pass/fail criteria. Understand the test and the research behind it. Don’t blindly accept and perform a protocol because it is included in an FCE protocol.
7. If you perform FCEs for attorneys, keep a record of the dates of the tests and for which attorney firms they were performed.
8. Conduct a careful review of the client’s medical history and make sure your musculoskeletal assessment is consistent with all diagnoses.
9. Avoid making causation assumptions you can’t support, especially when a prior injury to the same body part is present.
10. Never request a surveillance video. If an attorney asks you to review a surveillance video, wait until after you have finalized your report. A separate report can describe any discrepancies between the FCE and video surveillance.
11. Finalize and sign reports before sending them to a referring attorney. If the attorney wants further clarification, request those questions in writing and create an addendum to the report.

Conclusion:

Remember Benjamin Franklin’s famous quote regarding reputation: “It takes many good deeds to build a good reputation and only one bad one to lose it.”

In this age of fierce competition among physical therapy businesses, it’s tempting to use whatever shortcuts are available to gain referrals. But if we position ourselves as an evaluator that will provide a predictable result to benefit one side of the legal equation and use subjective and unvalidated assessments, we are stepping outside the bounds of ethical practice.

If you want more information on a validated and legally defensible testing protocol, contact ErgoScience today with validity assessments you can defend.

References

(1) Lechner, DE

(2) James, LP; The Relationship Between Isometric and Dynamic Strength Following Resistance Training: A Systematic Review, Meta-Analysis, and Level of Agreement. International Journal of Sports Physiology and Performance. Volume 19(1) pp 2-12. https://doi.org/10.1123/ijspp.2023-0066