Nevada Workers' Compensation Law Blog : Nevada Workers' Compensation Lawyer & Attorney : Virginia Hunt Law Firm : Las Vegas Job Injuries & Worker Accidents

The FCE (functional capacity evaluation) often serves to let the physician off the hook on trying to please both his patient and the insurer on the issue of work release restrictions. The insurer may be pressuring the doctor to give a full duty work release, while the patient keeps telling his doctor that he does not think he will be able to go back to his pre-injury occupation or employer. When the doctor order a FCE before giving final work restrictions, then his job is easier because he can simply adopt the findings of the independent physical therapist who gives the FCE.

The FCE is a 2-3 hour test given at a physical therapy facility. Generally, the tests consist of lifting, walking on a treadmill, bending, carrying, and doing other physical movements that may or may not have anything to do with the physical activity you actually do at work. The FCE has validity criteria built into the various tests that can supposedly detect when the patient is not giving a full effort.

If you fail enough of the validity criteria and the test comes back invalid, then you run the considerable risk of your doctor no longer believing that you are incapable of returning to your old job.   Or, your doctor may tell you that his only option is to return you to work full duty when a FCE is invalid. That is not true, however. Your doctor may instead disregard the FCE results, and based on his own exams of you, may decide that you do have permanent work restrictions. Few doctors are unwilling to override an invalid FCE.

If your doctor gives you a full duty work release following your invalid FCE, then you can expect your benefit checks to stop immediately. Moreover, if you don’t try to go back to work full duty, your employer may terminate you.

The best way to handle this situation is to file an appeal when the insurer stops your benefit checks. Secondly, assuming you have some money left, you will want to pay a different physical therapist to redo your FCE. Expect to pay at least $600 up front for a repeat FCE. While this is a lot of money for an injured worker, it is essential to obtain a valid FCE showing that you should have work restrictions.  Otherwise, you will not be able to convince a hearing officer that your benefits should be reinstated and that your doctor should review the results of the second FCE. Some attorneys will advance the cost of a second FCE if the attorney agrees to take you as a client.  

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Occasionally, one of my clients asks me to sign a lien agreement with  a company offering to advance money to the client based on the client's potential permanent partial disability award at the end of his claim.  I have never agreed to sign one of these agreements.  These advance settlement firms have been around a long time in the personal injury world, but are now beginning to show up with greater frequency in the  workers' compensation arena. The Las Vegas Review Journal has an article today on the state's efforts to regulate these litigation finance companies, focusing in particular on the company ownd by TV reality star Rick Harrison of "Pawn Stars".

There are many reasons I refuse to get involved in any manner with these financial settlement loan companies.  I understand that many people are desparate for money, particularly when their claim is denied, and there is no income and no medical care.  However, from what little information a couple of these companies have been willing to share with me, these companies have no understanding of how workers' compensation claims are settled in Nevada.  They do not even know that legally, the only liens that are allowed on workers' compensation claims are child support judgments.  I recommend that my clients not sign agreements with these types of companies with regard to permanent partial disability award settlements.

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While there are no recent statistics, I know from my experience that the majority of claims filed by injured workers in Nevada for carpal tunnel syndrome are initially denied.  Carpal tunnel syndrome presents as numbness, tingling, and pain primarily in the first three fingers and the thumb side of the hand.  It results from compression of the median nerve that travels through the wrist.  Symptoms often occur or worsen at night and after sleeping.  In a typical case, the injured worker begins to have symptoms, and only after months of hoping that the symptoms will go away in time, files a claim when the symptoms are so bad that they interfere with work.

From the injured worker's perspective, because symptoms get worse with work activity, work must be the cause of the problem.  However, when the worker reports the problem to her employer, and then goes to the designated clinic to file a claim, the examining physician usually is unwilling to state that the problem is work-related.  Most often, the diagnosis on the C-4 claim form is "tendinitis", and the doctor puts a question mark by the question asking whether the occupational disease or injury is work-related.

Adjusters usually deny the claim when they see that the physician is unable to connect the problem with work activity.  Some times the adjuster denies the claim "under medical investigation", but is willing to allow the worker to see a hand specialist.  If the adjuster simply denies the claim, then the worker must use private insurance or pay for a consultation with a hand specialist to obtain a report that more accurately diagnoses the problem and more definitively states whether the problem was caused by the job.

An experienced hand specialist (orthopedic physician) may not need additional diagnostic testing to diagnose carpal tunnel syndrome.  However, insurers usually want to see positive nerve conduction studies and electromyography to accept a CTS diagnosis.  Secondly, the hand specialist must be able to report that there is a direct causal connection between the CTS and the patient's occupation.  In order to do that, the hand specialist must exclude the nonoccupational risk factors for CTS that include increased age, pregnancy, diabetes, rheumatoid arthritis, and obesity, and sex. ( There is a higher incidence of CTS for females).  

The hand specialist should take a detailed medical history so that nonoccupational risk factors can be excluded, and the patient should discuss in detail the work activity and job requirements that the patient believes contributed or caused the symptoms.  If possible, provide the hand specialist with a copy of the employer's  written physical  description of the job.  The hand specialist will be looking for occupational risk factors of repetitive hyperflexion and twisting of wrists, prolonged use of handheld vibratory tools, forceful and repetitive grasping, and awkward wrist positions.  The scientific data on whether prolonged use of computer keyboards causes CTS is conflicting according to the AMA Guides to the Evaluation of Disease and Injury Causation (2008).  However, I have found that the reputable local hand surgeons in Las Vegas will draw their own conclusions as to each patient when keyboard activity is questioned as to the cause of CTS.

Carpal tunnel syndrome can be covered under the Nevada Occupational Disease Act.  The key to successfully presenting a claim and having it accepted is proper medical documentation of the problem and its relationship to the worker's particular occupational activities.  These are difficult claims, however, because the initial treating physician often does not have sufficient information to state that it should or should not be accepted as a workers' compensation claim.  Denied claims must be appealed within the 70 day appeal time regardless of whether the worker has completed her own medical investigation with her own doctors.  These claims can be successful with the help of a skilled attorney.

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