Is a Functional Capacity Evaluation to Return to Work Necessary after a Workers’ Compensation Injury?

By on September 9th, 2013

Posted in Personal Injury Law Journal

The words “Functional Capacity Evaluation” do not appear in the New Jersey Workers’ Compensation Statute; however the issue of whether or not an employer can require the exam is one that comes up often in my workers’ compensation practice.  In New Jersey there is nothing in the law that addresses a fitness for duty exam or even allows or requires an employer to utilize one before allowing an employee to return to their job after a work injury.  I always tell my clients that they should not submit to a Functional Capacity Evaluation (FCE) if at all possible, and that it is not required under the workers’ compensation law.  An FCE is usually preformed by a physical therapist and consists of a series of physical tests to see if you can perform the physical functions of your job.

I take the position that as long as the employer does not absolutely require the exam for a legitimate work reason, there is no reason to submit to it. The FCE generally comes up when the treating physician is unsure about whether an employee can return to work.   Oftentimes a physician does not know what to do with an employee who has finished treatment, but does not feel they can return to their job.  At that juncture the physician often prescribes the FCE because they do not know what else do since treatment has ended.  The physician might think they are helping you to get an easier job, or one with restrictions, if you can’t do your old job.  In reality this is not helpful because your employer generally does not have to give you long term restricted duty, and definitely does not have to do so once you have reached maximum medical improvement after workers’ compensation medical treatment ends.

My advice to my clients is that they tell their doctor that they can lose their job if they fail the FCE, and that they do not want to submit to the FCE prior to returning because their employer might use it against them.  If you fail the FCE, and can’t do your job duties, your employer may be able to terminate you.  Best just to tell your doctor that you think you can do your job, and to release you to work full duty.  Most of my clients find that over time they are able to do their regular job.  Even if you feel you may not be able to do your regular job at the time the workers’ compensation doctor releases you to return, it is best to try and show that you are willing to return to work.  Of course there are some workers who will not be able to return to their old jobs, however that is a whole new topic of conversation.

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