W. Va. Code R. § 85-20-34

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 85-20-34 - Treatment Guidelines: Functional Capacity Evaluations: Work Conditioning and Work Hardening Rehabilitation Programs. (Effective Date: February 1, 2005)

34.1. Functional capacity evaluations. Functional capacity evaluations measure or quantify the physical abilities of an injured worker identified as essential in performing suitable, gainful employment and/or objectively define an injured worker's functional abilities or limitations in the context of safe and productive work. A functional capacity evaluation does not reflect what an individual should be able to do; but rather, what an individual can do or is willing to do at a given time. The functional capacity evaluator must be qualified by reason of training and experience and must employ valid, generally accepted scientific methodology in determining the injured worker's ability.

34.2. Functional capacity evaluation providers. Functional capacity evaluations shall be performed by an approved licensed occupational therapist or physical therapist, with the limited exception as described within this subsection. Medical doctors, doctors of osteopathy and chiropractors shall not perform functional capacity evaluations, unless they meet the exception described in the section.

34.3. Functional capacity evaluation provider qualifications.

a. The approved functional capacity evaluation provider shall:

1. Submit specific documented post professional education and training in occupational rehabilitation and/or training for the model of functional capacity evaluation they are providing, and

2. Have a minimum of one year of supervised patient care experience in an outpatient industrial, orthopedic or sports medicine setting. A minimum of 25% of the provider in training's work experience must be spent working with injured workers.

b. Limited exception. If approved by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, nationally certified athletic trainers, exercise physiologists, medical doctors, doctors of osteopathy and chiropractors may be allowed to perform functional capacity evaluations.

1. In its sole discretion the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may grant this limited exception only to those that have demonstrated to the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, the ability to perform high quality functional capacity evaluations. At the sole discretion of the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, those providers who demonstrate their skill in the performance of these services may be allowed to provide these services. These providers will be subject to the usual review and quality assurance programs (review of applicants and monitor performance) as designated by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Each approved provider will successfully complete a number of test cases. The primary goal of these guidelines is to assure only valid, high quality exams are rendered to injured workers.

2. Exams performed by commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, approved providers under this limited exception may be required by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to be supervised by a licensed occupational therapist or physical therapist. All functional capacity evaluations performed by these providers may also be required by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to be signed by the person performing the exam and by the supervising licensed occupational therapist or physical therapist.

3. Functional capacity evaluations performed by unapproved providers shall have no force and effect for evidentiary purposes, nor shall the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, pay for this service.

c. The commission may perform site inspections and all functional capacity evaluation providers must meet the commission's functional capacity evaluation criteria. Upon termination of the Commission, this provision regarding site inspections shall also terminate.

d. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall require each approved provider to successfully complete a number of test cases. An ongoing quality assurance system will monitor the quality of functional capacity evaluation providers after a provider is approved. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will establish the quality assurance system.

34.4. Indications for functional capacity evaluations. A functional capacity evaluation is indicated if the medical, physical therapy, work hardening, work conditioning records are unclear in regard to the injured worker's physical and functional abilities to return to suitable gainful employment or proceed with a vocational rehabilitation plan.

34.5. Authorizations for functional capacity evaluations. If a treating provider determines a functional capacity evaluation is needed, the initial functional capacity evaluation can be performed without prior authorization, as long as it is a Level 1 examination; Provided, if the functional capacity evaluation is to be performed by a treating provider, then pre-authorization is required to be received from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for all functional capacity evaluations. All subsequent functional capacity evaluations performed by non-treating providers will require prior authorization.

34.6. Purpose. The purpose of the functional capacity evaluation is to enable the provider to:

a. Determine the injured worker's physical and functional status;

b. Determine if the injured worker is able to return to the pre-injury job;

c. Determine the injured worker's Physical Demands Strength Rating level and other capabilities for the physical demands of work as defined by the United States Department of Labor. For definitions related to functional capacity evaluations, see Appendix §85-20-F; and

d. Determine the injured worker's material and non-material handling abilities.

34.7. Types of functional capacity evaluations. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will recognize and reimburse for two (2) levels of functional capacity evaluations, a Level 1, or limited functional capacity evaluation, and Level 2, or comprehensive functional capacity evaluation.

a. A Level 1 functional capacity evaluation will be performed prior to entry into a work hardening or work conditioning program or as a focused physical and functional evaluation prior to returning to pre-injury employment or objectively identified vocational rehabilitation goals.

1. The FCE provider generally will perform a Level 1 exam in a one (1) to, two (2) hour timeframe.

b. A Level 2 exam will be a comprehensive evaluation used for the quantification of an injured worker's physical and functional abilities to establish a vocational rehabilitation plan or goal, permanent total disability evaluation or as a physical and functional evaluation prior to entering a job search.

1. The provider will generally perform a Level 2 evaluation in a three (3) to four (4) hour timeframe.

c. Functional capacity evaluations are to be performed using standard and generally accepted tests, protocols and methodologies and will address issues associated with worker participation and physical effort. Restrictions in the ability to perform a physical action, task or activity in an efficient, typically expected or competent manner may be physiological, biomechanical or psychophysical in nature. Therefore, the evaluator should address whether the performance restrictions are physiological, biomechanical or psychophysical in nature.

d. Components of all functional capacity evaluations include but are not limited to a review of medical records, worker interview, physical examination and tests simulating real functional tasks addressing capacity to fulfill the material and non-material handling requirements of work as defined by the United States Department of Labor.

1. Unless otherwise specified, requested, or documented to be of limited utility because of lack of relevance to the vocational goal or determined to be a safety hazard to the injured worker by the evaluator, material handling testing will, at a minimum, include: a maximum safe lift, floor to waist lifting, waist to shoulder lifting, overhead lifting, carrying, pushing, and pulling.

2. Unless otherwise specified, requested or documented to be of limited utility because of lack of relevance to the vocational goal or determined to be a safety hazard to the injured worker by the evaluator, non-material handling test will, at a minimum, include: stair climbing, standing, walking, sitting, balancing, reaching, stooping (bending), crouching (squatting), kneeling, crawling and handling (grasping).

34.8. Functional Capacity Evaluation Report. The functional capacity evaluation report shall contain, as a minimum:

a. A summary of the injured worker's compensable and non-compensable injuries and/or coexistent physical or medical impairments or diagnoses as they relate to specific job demands of the injured worker's pre-injury employment or identified vocational goal;

b. The length of the evaluation and the test components of the evaluation and the methodology used;

c. The injured worker's material handling abilities, including lifting, carrying, pushing and pulling;

d. The injured worker's non-material handling abilities, including standing, walking, sitting, climbing, balancing, stooping, kneeling, crouching, crawling, reaching and handling;

e. The injured worker's demonstrated Physical Demand Level and demonstrated areas of restriction or limitations in the Physical Demand Level as outlined in the United States Department of Labor's Dictionary of Occupational Titles;

f. The reliability of injured worker's reported symptoms including consistencies and inconsistencies between injured worker's subjective reports, medical record review, documented physical findings, and test results;

g. The injured worker's level of demonstrated physical effort/cooperation and/or presence of nonorganic signs and symptoms and/or presence of symptom magnification syndrome or chronic pain disorder;

h. The signature of the person performing the test and, if appropriate in accordance with the provisions of 34.3.b. the signature of the individual supervising the test, with their qualifications and/or certifications that testing was performed in accordance with these rules and the established professional standards;

i. Documentation that the injured worker's informed consent was obtained prior to testing; and

j. The evaluator's summary with conclusions and recommendations.

34.9. Work Conditioning and Work Hardening Rehabilitation Programs. Occupational rehabilitation programs, including work conditioning and work hardening, have the goal of assisting the injured worker with unresolved physical, functional, behavioral, and vocational needs following acute care. The treatment focus of these rehabilitation programs is aimed at restoration of work-related function. Physical and occupational therapists provide the physical and functional components within these programs.

a. A work conditioning program is an intensive, work-related, goal-oriented, conditioning program designated specifically to restore systemic neuromuscular activities, including strength, endurance, movement, flexibility, motor control, and cardiopulmonary functions. The objective of the work conditioning program is to restore or maximize physical ability and function to enable the injured worker to return to work.

b. Work hardening programs are of two types:

1. A general work hardening program is highly structured, goal-oriented, outcome focused, individualized, progressive and supervised treatment program designed to maximize physical abilities and enable the injured worker to return to work. Such a program may be offered at any time throughout the recovery phase. The program focuses on functional restoration and return to work. Goals of the program include, but are not limited to, improvement of cardiopulmonary and neuromuscular functions, including strength, endurance, movement, flexibility, stability, and motor control functions, education, and symptom relief. A general work hardening program may follow and supplement or enhance the goals achieved in work conditioning.

2. A comprehensive work hardening program includes all the components of a general program but is also multidisciplinary in nature and must meet the guidelines on Multidisciplinary Pain Management. See section thirty-six of this Rule (Rule 20, § 85-20-36 ) for a description of the services typically associated with these types of programs. All comprehensive work hardening programs and multidisciplinary functional restoration programs require prior authorization from the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and are handled on a case-by-case basis.

34.10. Work Conditioning and Work Hardening Rehabilitation Programs: Admission Criteria.

To be eligible for these programs, the injured worker must have a return to work goal, a job goal, have stated or demonstrated willingness to participate, and have identified systemic neuromuscular physical and functional deficits that interfere with work.

a. A functional capacity evaluation is required prior to entering any work conditioning or work hardening program unless it is determined and documented to be unnecessary by the program director and/or treating physician.

b. A vocational assessment that is job-focused and individualized may be required prior to entry into a work hardening program. A limited vocational assessment may be appropriate when the goal is a return to the pre-injury employer. A functional job description or job analysis may be required when modified or alternate duty with the pre-injury employer is the goal. A rehabilitation evaluation is required when employment with a new employer is the goal.

34.11. Work Conditioning and Work Hardening Rehabilitation Programs: Discharge Criteria.

The injured worker shall be discharged from the work conditioning or work hardening program when:

a. The anticipated goals and expected outcomes have been met;

b. It can be documented that the injured worker is unable to continue to progress toward the anticipated goals and expected outcomes;

c. It can be documented that the injured worker declines to continue the program;

d. It can be documented that the injured worker fails to comply with the requirements for participation; or

e. The program director determines the injured worker will no longer benefit from the work conditioning or work hardening program. Upon discharge from the work conditioning or work hardening program, the program director shall notify the claimant's employer, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and/or any other referral source with the following information:

1. Reasons for program termination;

2. Clinical and functional status;

3. Recommendations regarding return to work; and

4. Recommendations for follow-up services.

f. Only the injured worker's treating physician, program director, or the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall discharge an injured worker from a work conditioning or work hardening program.

34.12. Referrals to Work Conditioning and Work Hardening Programs.

Referrals to work conditioning and work hardening programs will be accepted from the treating physician of record, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, or an independent medical evaluator selected by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

34.13. Components of an Occupational Rehabilitation Program. An occupational rehabilitation program shall consist of the following components:

a. Providers of work conditioning and work hardening shall have the following qualifications.

1. Work conditioning and work hardening programs will be directed by a licensed occupational therapist or physical therapist who has completed training in a specific industry accepted work conditioning or work hardening training model. The provider will have a minimum of one year of supervised patient care experience in an outpatient, industrial, orthopedic, or sports medicine setting, of which a minimum of 25% must have been spent with work-related injury care.

2. It is acknowledged that other providers may be able to provide highly useful services. At the sole discretion of the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, those treating providers who demonstrate their skill in the performance of these services may be allowed to provide these services. These treating providers will be subject to the usual review and quality assurance programs (review of applicants and monitor performance) as designated by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable,. Each approved provider will successfully complete a number of test cases. The primary goal of these guidelines is to assure high quality services are rendered to injured workers.

3. A licensed health care professional must be "on site" at all times while treatment is being rendered to the injured workers.

4. The supervising daily staff members of the work conditioning and work hardening program may be composed of exercise physiologists, nationally certified athletic trainers, licensed occupational therapists, licensed physical therapists, licensed occupational therapy assistants and licensed physical therapy assistants.

5. All program directors and supervising daily staff members shall be approved by the commission's, Insurance Commissioner's, private carrier's or self-insured employer's, whichever is applicable, approval process.

6. Any change in program directorship or supervising daily staff must be communicated to the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

7. The staff to injured worker ratio in both work conditioning and work hardening programs will not exceed 1 to 8 at any time.

8. Direct observation of program participants by a staff member is required at all times.

b. Work conditioning and work hardening programs are a form of physical medicine services. These programs are also subject to the treatment services restrictions contained in the physical medicine treatment guidelines. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, on a case-by-case basis may approve initiation of such programs when their provision will exceed such guidelines.

c. Work conditioning will be attended two (2) to four (4) hours per day. Work hardening will be attended four (4) to eight (8) hours per day. Work conditioning and work hardening programs will be attended five (5) days per week. Program duration for either work conditioning or work hardening will not exceed four (4) weeks; however, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, on a case-by-case basis, may approve program extension.

d. Material handling components of the work conditioning and work hardening programs shall be at a minimum: 12" and floor to waist lift, waist to shoulder lift, overhead lift, carry, push, pull, and maximum lift.

e. Non-material handling components of the work conditioning and work hardening programs shall typically include balancing, overhead reach, forward reach, repetitive squatting, sustained kneeling, crawling, stair climbing, walking, standing, and sitting. Both material handling and non-material handling goals shall be consistent with identified functional goals of the individual injured worker.

f. The educational component of the work conditioning/work hardening programs will include prevention of re-injury, benefits of a home exercise program, self-treatment of symptoms, activity control of symptoms, body mechanics, benefits of exercise, nutrition, and healthy living habits.

g. All work conditioning programs shall have a minimum of 1,250 square feet of dedicated non-office clinic space. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may perform site inspections and all work conditioning and work hardening programs must meet the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, facility criteria.

34.14. Providers of work conditioning or work hardening programs are required to provide the following information in their reports in the timeframe as provided:

a. A brief summary of the injured worker's medical issues and problems as related to specific job demands;

b. Initial and discharge evaluations;

c. Attendance records, including the time spent in each session;

d. Duration of the program;

e. Material handling abilities;

f. Non-material handling abilities;

g. The injured worker's current physical demand strength rating as defined in the United States Department of Labor, "Dictionary of Occupational Titles," and deficits, if any, for the physical demand level of the established vocational goal;

h. Consistency of the injured worker's reported symptoms, including consistencies and inconsistencies between the injured worker's subjective reports and physical findings.

i. Level of demonstrated physical effort, cooperation and/or the presence of symptom magnification syndrome or chronic pain behavior;

j. Treatment summary with conclusions, restrictions, limitations, and recommendations;

k. Signature of the program director; and

l. Reports will be bi-weekly, upon exit or discharge from the program and/or as requested by the referral source or the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

34.15. If an injury or incident occurs during a work conditioning or work hardening program, a signed and dated incident report must be filed by the treating therapist and submitted to the the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, within three (3) working days of the incident. The incident report shall include as a minimum:

a. Name of the injured worker;

b. Claim number of the injured worker;

c. Date of incident;

d. Description of incident;

e. Description of injury to the injured worker;

f. Name of witnesses;

g. Name of facility, and supervising daily staff member; and

h. Name of facility director.

Following an injury or incident, unless in the case of an emergency, the injured worker will be referred by the facility to his treating physician for re-evaluation. The work conditioning/work hardening program may be temporarily suspended. The injured worker's ability to resume the work conditioning/work hardening program will be evaluated on a case-by-case basis and the decision to re-enter the program will be made by the program director in conjunction with the treating physician and the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

W. Va. Code R. § 85-20-34