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Lawyer uses evaluation to test clients’ abilities after a crash

The winner of the most famous hotdog-eating contest in the world, in 2008, ate a staggering 59 hotdogs in 10 minutes. It was a tie, actually. The two front-runners achieved the 59-hotdog mark. The tie was broken by a five hot-dog “eat-off.”

Could anyone possibly be wondering whether or not the front runners were really trying? Are there any thoughts going through your head that perhaps one of these fellows could have gotten to 60, but decided to hold back?

Why are we confident that the most hotdogs these competitors were capable of eating within a 10 minute time frame really was 59? For one, that’s an impressive (disgusting?) amount of food for anyone to consume in three days, let alone 10 minutes. Secondly, there was a lot at stake for the competitors. It’s a mighty prestigious thing to win the most famous hotdog-eating contest in the world.

How am I possibly going to fit this scenario within the context of a car crash claim? One of the most challenging parts of my job is coming up with ways to prove how very hard my clients have tried. It’s maddening, really. How do I prove, for example, that my client really cannot return to downhill skiing or that he or she really has trouble continuing to work as a carpenter or welder?

With the hotdog-eating contest, there are strong incentives to succeed at eating that 60th hotdog. With a car crash claim, when you look at it from the cynical perspective of an insurance company, there is a financial incentive to fail. And the greater the failure to return to a pre-crash level of functioning, the higher the claim. It’s a perspective that the insurance industry has succeeded in spreading, and I face a constant struggle working against that cynical perspective.

The reality is no one ever wants to give up that sport or activity that he or she really loves. The reality is our careers often define how we feel about ourselves and a loss of a career is not only financially but emotionally devastating.

I have a tool called a functional capacity evaluation, that I use An FCE is a series of physical tests conducted by an occupational therapist over the course of a day or two, designed to objectively test a person’s level of functionality.

The person being evaluated is required to do all sorts of things and his or her abilities are measured every step of the way. One test, for example, measures the person’s ability to lift. It requires the person to try to lift items of various weights. Another test measures the person’s grip strength. Another measures the flexibility of the lower back. Notice the word “try” in each of those examples? How is this testing any more reliable than what the car crash victim tells you?

Can’t he or she just manipulate the test results by not trying? That’s the beautiful thing about a functional capacity evaluation—you can’t fake it.

There are various elements of an FCE that ensure its results are very reliable. One element is the fact that each of the multitude of tests evaluates more than one thing. You don’t know, when you are told to perform an activity, what it is that is being tested.

For example, the task of fitting pegs into a peg board may seem to be evaluating your dexterity when in reality it is testing your ability to sustain an overhead working posture because the peg board is positioned over your head.

Another is the fact that each physical ability is tested in a number of different ways. There may be eight different activities, for example, that include an evaluation of lower back flexibility. Another is repetition. I challenge anyone to achieve exactly the same result on a set of calibrated hand grips three times in a row without giving maximum effort.

Have you ever tried to control your heart rate? There are even guidelines for how much your heart rate should increase if you are trying your very best at various activities. Not only are the test results and indications of effort objectively measured, there is a reason why the testing is done by a highly trained occupational therapist who is qualified to make objective observations of effort.

An occupational therapist can see when other muscles kick in to compensate for fatigued and painful ones. And is qualified to interpret innocent inconsistencies in testing so as to provide an overall opinion of the reliability of the testing.

In a perfect world, I wouldn’t have to struggle so hard against insurance industry cynicism. But it is not a perfect world and I am thankful for the few tools I have.

Published in Kelowna Capital News February 22, 2009

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