Employer and Claimant May Both Choose an FCE Provider

Claimant injured her back when she lifted a patient while working as a nursing assistant.  Claimant initially received conservative treatment which was not effective.  She then went to a different physician who diagnosed spondylolisthesis and recommended spinal fusion surgery.  An IME thereafter agreed with the diagnosis but recommended against surgery, instead suggesting that conservative care would suffice and also recommending an FCE to determine her level of activity.

Employer and Carrier then scheduled an FCE with a physical therapist, and Claimant filed a disputed claim and sought treatment with a pain management specialist.  Claimant also filed a motion for protective order and argued that the FCE was listed in the Medical Treatment Guidelines, making it “medical treatment” and that she should be allowed to choose the provider of the FCE.   She sent a request to Employer and Carrier, requesting authorization for an FCE with her choice of provider, and it was ignored.  Claimant submitted the request to the medical director for review, and the request was approved.

Employer and Carrier then filed their own disputed claim and argued that they already approved an FCE with the provider of their choice, so Claimant was not entitled to a second FCE with a provider of her choice.  Claimant argued the Louisiana Consent to Medical Treatment Act gives her the absolute right to choose her medical providers.  She further argued that the methodology employed by the employer’s chosen physical therapist could not satisfy the standards for evidence required by Daubert.  The WCJ affirmed the medical director’s approval of Claimant’s request for an FCE, but also ordered Claimant to undergo the FCE performed by Employer’s and Carrier’s choice of provider and denied Claimant’s Daubert challenge.  Both parties appealed.

On appeal, the decision was affirmed.  In its discussion, the court of appeal noted that the FCE is a test used to determine whether or how a worker can best return to work given the worker’s present health condition.  However, the court also noted that the FCE may be classified as medical treatment when it is used as a diagnostic reference for treatment purposes.  The court found that under the set of facts in this case, Claimant’s FCE with the provider of her choice was exactly the kind of use of an FCE that does amount to medical treatment as the IME recommended the FCE but there was a difference in opinion as to the necessity of surgery.  The FCE was clearly in furtherance of the resolution of the dispute about her need for future medical care.

The court also found that the FCE has commonly been treated as an examination, and when it is used primarily to determine the worker’s ability to return to work, the FCE falls squarely within the category of examinations that an employer may require.  The court also found that a physical therapist is a medical practitioner and may perform an FCE.  The court concluded that the WCJ correctly ruled that Claimant must undergo the FCE with the Employer’s choice of provider as well.

Rison v. LifeCare Hospitals of Shreveport