FCE and the Expert Witness Work Well Prevention

FCE and the Expert Witness Work. Well Prevention & Care

FCE and the Expert Witness Content of the Webinar The information contained in this 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.

FCE and the Expert Witness 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)

FCE and the Expert Witness Today’s Format The webinar is divided into 3 sections: • FCE Reports (and all medical records) on Trial • Expert Witness Testimony • Preparing Yourself for Court

FCE and the Expert Witness FCE Reports On Trial

FCE and the Expert Witness FCE Reports on Trial 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.

FCE and the Expert Witness FCE Reports on Trial 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.

FCE and the Expert Witness FCE Reports on Trial Guidelines – continued • 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

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued 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.

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • 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.

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • Legibility – Handwritten score sheets must be legible and should contain only standard abbreviations. • An illegibly handwritten entry may be misinterpreted (on the stand). – Using Work. Well’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 Joint Commission recommends abbreviations not be used.

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • 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.

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • 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).

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • 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.

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • 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.

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • 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.

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • Previous Conditions – continued – Follow APTA/AOTA guidelines for functional testing. – Performance of full body function (FCE) without examination of full body integrity can lead to injury and/or inaccurate results. – The physical assessment should include, at least: • History • Physical exam • Special tests as determined by the PT/OT

FCE and the Expert Witness FCE Reports on Trial Guidelines - continued • Documenting Adverse Occurrences – This is crucial to the defense of a negligence claim (against you). – Adverse client occurrences may include: • • Injuries from equipment Slips, trips, falls Overexertion of strained tissues Injuries resulting from improper performance of FCE subtests – Document the adverse occurrence concisely and objectively. • Record only factual information. • Do not document opinions. – Follow clinic P&Ps for recording incidents.

FCE and the Expert Witness FCE Reports on Trial 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.

FCE and the Expert Witness Testimony

FCE and the Expert Witness Introduction to Expert Witness Testimony As you have surmised by now, the best preparation for legal testimony is a well written, concise FCE report. In the remaining slides, you will see examples of questions attorneys could ask. The

FCE and the Expert Witness Testimony 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

FCE and the Expert Witness Testimony The Deposition - continued • 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?

FCE and the Expert Witness Testimony The Deposition – continued • 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.

FCE and the Expert Witness Testimony The courtroom and basic legal principles You will wait in the hallway outside the courtroom. • The bailiff will come out and call your name. • You will go to the witness stand. • You will be sworn in.

FCE and the Expert Witness Testimony The courtroom and basic legal principles - continued 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 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

FCE and the Expert Witness Testimony 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. confident and self assured. Instead, be

FCE and the Expert Witness Testimony Answer the attorney’s questions and ONLY the attorney’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.

FCE and the Expert Witness Testimony What questions should you expect from the attorneys? • Your educational background. – Prerequisite education – Professional education • If you “moved around” from school to school, s/he may try to present it as a problem. – Grades • Best class • Worst class – Favorite classes and/or professors – Problems in school

FCE and the Expert Witness Testimony What questions should you expect from the attorneys? • Your professional credentials and experience. – Professional position and title – Licensure • Now and in the past – Good standing? Problems? Disciplinary actions? • Explain factually and do not blame someone else or play the victim. – How many years at current job? • Moved around? • When/where/how were you trained in FCE? – By Work. Well faculty, standardized, training manual, annual credentialing and QA. • Have you submitted reports to Work. Well to be critiqued? – What were the outcomes?

FCE and the Expert Witness Testimony What questions should you expect from the attorneys? • What is an FCE? – A comprehensive objective test of an individual’s ability to perform workrelated tasks. • Who decides what tests are included? – Work. Well FCE protocols – U. S. Department 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.

FCE and the Expert Witness Testimony 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 Work. Well 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.

FCE and the Expert Witness Testimony 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.

FCE and the Expert Witness Testimony 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.

FCE and the Expert Witness Preparing Yourself and your FCE Report for Court

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

FCE and the Expert Witness Preparing Yourself for Court 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. ”

FCE and the Expert Witness Preparing Yourself for Court The FCE Report Follow the Work. Well 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. • Document online – best practice. • If you cannot document online, use a consistent report template (such as the one you received during training)

FCE and the Expert Witness Preparing Yourself for Court 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.

FCE and the Expert Witness Preparing Yourself for Court 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 Work. Well’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.

FCE and the Expert Witness Preparing Yourself for Court The FCE Report The Physical Exam – continued • 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.

FCE and the Expert Witness Preparing Yourself for Court The FCE Report The Physical Exam – continued • Include the “First 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)

FCE and the Expert Witness Preparing Yourself for Court 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.

FCE and the Expert Witness Preparing Yourself for Court 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

FCE and the Expert Witness Preparing Yourself for Court The FCE Report The Test Results and Interpretation grid – continued • Base your frequency projections on Work. Well 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.

FCE and the Expert Witness Preparing Yourself for Court The FCE Report The Test Results and Interpretation grid – continued • If reported pain is the limiting factor: – Does the level of pain coincide with: • • the subtest being performed? the level of effort? pain reports during similar subtests? the “client’s diagnosis and physical findings”? – Do observations substantiate pain as a limiting factor? • Asymmetrical movement patterns, for example – Limping increases – Shifting weight away from painful area – Unequal shoulder elevation • HR increased

FCE and the Expert Witness Preparing Yourself for Court The FCE Report The Test Results and Interpretation grid – continued • 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.

FCE and the Expert Witness Preparing Yourself for Court FCE Report The Test Results and Interpretation grid – continued • Correlating frequencies of related subtests – Walking frequency affects: • • Carrying Stair climbing Ladder climbing These frequencies cannot exceed that of walking. – Standing work frequency affects: • Lifting • Forward bending – standing • These frequencies cannot exceed that of standing work.

FCE and the Expert Witness Preparing Yourself for Court The FCE Report The Test Results and Interpretation grid – continued • 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 bendingstanding to correlate with that of standing work: – The limitations section should include a statement such as, “Frequency is limited by standing work ability. ”

FCE and the Expert Witness Preparing Yourself for Court 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?

FCE and the Expert Witness Preparing Yourself for Court Regarding surveillance videos If asked to view a surveillance video and compare it with the FCE: • Do not bias yourself or give the appearance of bias. –Do not view the video prior to the FCE. –Do not ask what it shows. –If the requestor starts to describe the video, tell him/her to stop. –Ask that the video not be sent to you until after the FCE report has been received. • Charge the referrer for your time.

FCE and the Expert Witness Malpractice

FCE and the Expert Witness Malpractice In the unlikely event that you are accused of doing something other than what a reasonable and prudent PT/OT would do under like or similar circumstances, your best defense should be your FCE report. Remember the axiom: “If it’s documented, it happened”. “If it’s not documented, it didn’t happen”. • Or you omitted damaging information

FCE and the Expert Witness Malpractice Remember: If you have conducted the FCE in accordance with Work. Well’s professional guidelines and if you have written the report according to Work. Well’s standards, you should be well-defended against a malpractice suit.