This week I heard from Ray Radulski, counsel for Liberty Mutual. He was proud of himself, and rightfully so. I give you Dean Baslenkoff-Elder v. EZ Loan, Inc., IAB# 1375757 (5/9/12). Here is what Ray had to say:
"I know that this decision is not the kind that blazes a new trail of case law. However, I think it delivers some quality food for thought about a couple of issues. First, it tells us something about medical restrictions. They do not have to be impressive to be effective. (I say this because that was a big part of Mike's closing, that the restrictions were not "good enough.") I thought that the decision was well-written on this point. The FCE in April 2011 released this man to part-time sedentary duty work. At first blush, I'll agree that those are tough restrictions. Nevertheless, we found jobs that fit them. Dr. Kalamchi agreed with the restrictions and believed Claimant could work within them. Danny O'Neal testified that jobs were out there. We had everything that we needed to have to meet our burden of proof. You can call someone "barely employable", but employable is employable.
Second, it tells us about the growing importance of functional capacity evaluations. If you have one completed as a physician, you better know about it and either accept it or give us a good reason as to why you disagree. Now, the same is true for all medical treatment. But, I think the FCE has more importance because of how it tests the Claimant's effort. It becomes more than simply the treating physician's "call" on whether or not the Claimant is compliant with treatment recommendations, etc. Does it have implications for Gilliard-Belfast? Maybe it does. The treating physician does not get to have his/her cake and eat it too. You cannot ask for something, have it completed and then disregard the result in directing treatment and offering opinions on disability with no specific reason for doing so. The old he or she "cannot work because I said so" opinion will have difficulty if you have an FCE out there saying otherwise. However, please do not think that the implication for Carriers is lost on me. If you ask for an FCE and it comes back that there was a valid effort and the Claimant cannot work, that opinion is out there and a DME (that does not consider it) may not help. Bottom line, the FCE's importance to the Board is growing."
I agree with Ray that the FCE is becoming the new standard for presenting a Termination to the Board. It makes for an objective adjunct to the defense medical evaluation opinion on work capability status. And in this case the FCE wasn't a ringing endorsement of work ability. Part-time sedentary for a claimant, post-op times three, who appeared at the hearing ambulating with a cane and carrying a diagnosis of failed back syndrome. Ray's case shows that sometimes a little bit of work ability is better than none at all. And apparently enough to meet the burden of proof on a Review Term. Yep, I was surprised, and impressed, by the outcome.
And for once, Dr. Rudin (testifying for the claimant) didn't have the imprimatur of credibility. Go figure.
Irreverently yours,Cassandra Roberts
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