Functional Capacity Evaluations are a better tool for you than for ICBC because it helps prove your personal injury claim
Functional Capacity Evaluations are also called Work Capacity Evaluations. They are generally performed by occupational therapists (“OT”) that have special training and are called Certified Work Capacity Evaluators. Occasionally, doctors perform the same testing.
A Functional Capacity Evaluation usually takes at least a day and sometimes more. Usually, the assessment is done at the office of the OT but sometimes they are done at your workplace or home.
Functional Capacity Evaluations are a better tool for you than for ICBC because it helps prove your personal injury claim. Functional Capacity Evaluations attempt to determine whether an individual, on an objective basis, can do a certain level of activities or work. The OT performs extensive testing and decides as to the functional limits of the individual, whether it is sedentary, light, medium or heavy work/activities. They look at the ability of a Plaintiff to perform a certain job.
Since the day long testing involves numerous real-life situations which simulate work and activities, it is hard for ICBC to turn around and suggest that the testing process is invalid. Also, it is easy to argue that the Functional Capacity Evaluation is a better measure of disability than the measure used by an ICBC doctor who performs a 15-30-minute physical exam.
Functional Capacity Evaluations are helpful in judging whether you can perform your pre-accident employment duties. If you have been able to return to your pre-accident employment, a favorable result from a Functional Capacity Evaluation can still help to establish a loss of capacity claim. This would be the case if the testing process showed that you are unable to perform all jobs and duties that you would otherwise have been able to do had you not been injured.
In performing the evaluation, the OT assesses your capacity to perform certain activities and then reviews the type of job you did before the accident based on statistics from the Canadian government. If your work capacity does not meet the job duties described by the government statistics, then the OT would find that you are not competitively employable to do that job.
In terms of when to have a Functional Capacity Evaluation, this test is best performed at a point when ICBC or the disability carrier is pressuring you about returning to work. If you have a favorable test result, which shows your physical capacity does not allow you to work, how can ICBC or the disability carrier cut off the disability benefits?
The other time when a Functional Capacity Evaluation should be performed is within six months of a trial date or a few months in advance of an attempt to settle your claim with ICBC.
Unfortunately, Functional Capacity Evaluations are expensive and usually cost in the order of $4,000-$6,000. MSP does not cover this expense and it is unlikely ICBC will cover the cost upfront either. You can fund the assessment yourself or find a lawyer that will fund it. Fortunately, the cost of the Functional Capacity Evaluation will almost always be recoverable from ICBC at the end of the claim as a “disbursement”.
Note that during the Functional Capacity Evaluation, the OT will run validity tests to make sure that you are giving a maximum effort and not overstating your problems. Remember, the test administrator is an expert who has likely completed thousands of assessments, so you would be foolish to think you can exaggerate your presentation or give inconsistent effort without being caught. You cannot trick an expert.
If you are caught exaggerating or giving less than full effort, the test will be invalid. For example, if you decline to participate or limit your participation in certain tests due to your perception of disability, the testing will be useless. You need to trust the trained expert OT to conduct testing in a safe and reasonable manner, especially if you hired the OT. Exaggeration or non-participation in the testing means you are wasting money as there will be no expert report from the assessment.
ICBC will use a Functional Capacity Evaluation where they need to counteract an expert opinion supporting your disability. The other common reason ICBC uses this testing is where they feel you are likely to exaggerate your injuries or not fully participate. If that happens, ICBC will get a great report from the OT suggesting your credibility is an issue.
In summary, a Functional Capacity Evaluation can be a valuable tool to prove disability so long as you participate fully and don’t try to “pull one over” on the tester.