December 02, 2012

Employer Not Entitled to FCE as Part of a Section 12 Evaluation

December 02, 2012

W. B. Olson, Inc. v. IWCC No. 2012 IL App. (1st 113129 WC)

The Appellate Court has finally weighed in on the thorny question which presents in many workers’ compensationcases: Can an employer obtain a functional capacity evaluation based on the recommendation of its Section 12 examiner?  Section 12 of the Act provides for an evaluation at the expense of the employer by a duly qualified medical practitioner or surgeon:

“for the purposes of determining the nature, extent and probable duration of the injury received by the employee, and for the purpose of ascertaining the amount of compensation which may be due the employee from time to time for disability…”  In addition, the Commission may on its own motion order an impartial examination when “such an examination will materially aid in the just determination of the case.”

This type of examination, under Section 19(c), shall be made by a member of a panel of physicians chosen by the Illinois State Medical Society; the Commission shall establish procedures by which a physician is selected from this list.

In the case at hand, Clement Kolin was referred to Dr. Tonino for a Section 12 evaluation  by his employer, W. B. Olson, following knee replacement surgery.  Dr. Tonino concluded that Kolin was at maximum medical improvement and acknowledged certain restrictions previously imposed by the treating surgeon.  In addition, he recommended a FCE based on the belief that this test was ‘probably a more reliable objective indication’ of Kolin’s work capabilities.  Kolin’s physician did not order an FCE and Kolin refused to attend a FCE ordered by W. B. Olson’s Section 12 examiner.  W. B. Olson continued paying benefits and filed a 19(b) petition to adjudicate the issue and the merits of competing vocational rehabilitation plans.

The Arbitrator found that Kolin had been involved in a reasonable vocational rehabilitation effort via his expert yet was silent as to the Dr. Tonino FCE recommendation.  On review, the Commission affirmed the Arbitrator’s decision as regards vocational rehabilitation and was also silent on the FCE.  However, in her dissent, Commissioner Lindsay noted that Dr. Tonino’s opinions were not challenged and suggested that certain restrictions initially imposed were no longer necessary.  Therefore, Commissioner Lindsay opined that for effective vocational rehabilitation to proceed, Kolin’s current physical abilities needed to be known; she would have required a FCE be undertaken as part of an updated vocational plan.

On appeal, the court stated that the Commission “determined…that it was unnecessary and inappropriate to order either a repeat FCE or formal vocational rehabilitation,” notwithstanding the silence in both the Arbitration and Commission majority opinions on the propriety of the FCE.  The court held that neither Section 12 nor Section 19(c) of the Act provides statutory authority for a functional capacity evaluation.  A FCE is performed by a physical therapist, whereas neither Section 12 nor Section 19(c) permits an evaluation with anyone but a “medical practitioner or surgeon” or “an impartial physical or mental examination” by “a member or members of a panel of physicians.”

The Court rejected a due process argument made by W. B. Olson, stating that a Section 12 examination performed by a doctor chosen by an employer is sufficient due process to provide the employer with “a meaningful hearing and a ‘level playing field’ in workers’ compensation litigation.”  The Court refused to expand the meaning of Section 12 to permit the evaluator to order a claimantto submit to a FCE.


A prescription for a FCE has long been considered “treatment” by the petitioner’s bar.  Notwithstanding the relative silence of the Commission on this subject, the Appellate Court decided to relieve injured petitioners from the onerous requirement of having potential restrictions cast in an objective light.  In discussions with select members of the petitioner’s bar, your editor is given to understand that it is unlikely attorneys will argue a blanket ‘ban’ on all FCE requests – where appropriate, the attorneys will agree to a FCE – but it is unlikely that an agreement will come in cases where a treating physician is keeping a claimant off work with no prospective end in sight to conservative care and disability.

As our clients know, there are select physicians who consider it their role to advocate for total disability for their patients irrespective of their ability to work.  We believe that in a case involving one of these physicians, it will be difficult to obtain an agreement to undertake a FCE now that the Appellate Court has given its imprimaturto ignore such requests.  Meanwhile, we ask: Can a Section 12 evaluator demand an X-ray or request an MRI or CT scan in order to properly diagnose a condition?