FCE and The Expert Witness Final 03 2012

FCE and the Expert Witness
WorkWell Prevention & Care

Content of the Webinar
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.
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)
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
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.
FCE Reports On Trial

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.

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.
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

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.

•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.

•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.
•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.

•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).

•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.

•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.

•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.

• Previous Conditions – cont’d.

– 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
• 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.

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.
Expert Witness
Testimony
Introduction to Expert Witness Testimony
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.
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

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.
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.
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.


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

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.

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.

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

• 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?
– WW faculty, standardized, training manual, annual credentialing and QA.
• Have you submitted reports to WorkWell to be critiqued?
– What were the outcomes?

•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.

•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.

•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.
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.
Preparing Yourself and

your FCE Report for Court
Preparing Yourself for Court
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.
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.”
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.

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.
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.
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.
The FCE Report

•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)

The FCE Report
•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.
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
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.
The FCE Report

• 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

The FCE Report
•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.

The FCE Report
• 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.

The FCE Report
•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.”

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?

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.
Malpractice
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
Malpractice
Remember:
If you have conducted the FCE in accordance with
WorkWell’s professional guidelines and if you have
written the report according to WorkWell’s
standards, you should be well defended against a
malpractice suit.
Thank you
Thank you for participating in your webinar.
If you have suggestions for other webinars, please

contact us.

FCE and The Expert Witness Final 03 2012

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FCE and the Expert Witness

WorkWell Prevention & Care

Content of the Webinar

The information contained in today’s webinar comes from

•The participants in the deposition/courtroom and their roles

The presentation will be posted to the Provider Resource Center on or

FCE Reports On Trial

FCE Reports on Trial

FCE Reports on Trial

FCE Reports on Trial

FCE Reports on Trial

How can a PT/OT document the functional abilities/limitations

FCE Reports on Trial

– An attorney may challenge whether you could remember details of

– Delays could be made to appear negligent, sloppy, and a reflection

FCE Reports on Trial

FCE Reports on Trial

•Alterations to score sheets and/or final FCE report

FCE Reports on Trial

•Clear and concise documentation is essential

FCE Reports on Trial

FCE Reports on Trial

•Reports of what the client said

FCE Reports on Trial

FCE Reports on Trial

• Previous Conditions – cont’d.

FCE Reports on Trial

FCE Reports on Trial

•Never underestimate the importance of the FCE report and

Introduction to Expert Witness Testimony

As you have surmised by now, the best preparation for legal

As we go through the remaining slides, you will see examples of

Think of additional questions, especially if from your own experience as

Expert Witness Testimony

Expert Witness Testimony

•Attorneys ask you about your conclusions and the basis of

Expert Witness Testimony

The Deposition – cont’d

NOTE: If your FCE report is written according to the highest standards,

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.

Expert Witness Testimony

Expert Witness Testimony

•Do not get defensive or angry!

Expert Witness Testimony

•Do not expand on the questions.

Expert Witness Testimony

Expert Witness Testimony

Expert Witness Testimony

Expert Witness Testimony

Expert Witness Testimony

Expert Witness Testimony

Preparing Yourself and

Preparing Yourself for Court

In the autumn of 2005, a team of independent international

Most of WorkWell’s providers have upgraded to FCE V.2.

Preparing Yourself for Court

The FCE Report

Keep the following statement in mind as you document all

“A good FCE report does not raise questions,

Preparing Yourself for Court

The FCE Report