Geaney: FCE Supports County's Decision to Terminate Employee After Workers' Comp Injury

Monday, March 14, 2022 | 0

Functional capacity examinations (FCEs) can be very useful in determining the ability of a worker to perform essential job functions by removing the guesswork and instead providing accurate data on an employee’s physical abilities.

John H. Geaney

In The Matter of Thalia Tretsis Middlesex County, Sheriff’s Office provides some important guidance on the use of FCEs.

Thalia Tretsis (hereinafter “the appellant”) injured her knee at work when she fell on ice in the county parking lot on March 6, 2015. She treated with authorized doctors and returned to work, eventually resuming full duty. However, some months later she began to have knee problems again and saw Dr. Gregory Gallick, who performed arthroscopic surgery on Jan. 5, 2017. 

Following the surgery, the appellant experienced continuing knee pain. Gallick approved light-duty work in mid-February 2017, but appellant’s knee pain continued to bother her. Gallick next ordered an FCE because he felt that the appellant was not recovering as well as he had expected.

Kinematic Consultants (now known as Atlantic Kinematics) performed the FCE on June 8, 2017. Gallick reviewed the results and opined that the appellant could not perform the full duties of a sheriff’s officer. Appellant told Gallick that she “did not feel comfortable going back to her regular job” because of the pain and weakness in her knee.

On June 27, 2017, the county’s employee benefits specialist attended an employee status conference with the appellant to review the FCE results. The FCE showed that appellant’s ability to lift was limited to 35 pounds. The appellant requested that the county send her to another orthopedic specialist. The county agreed.

On July 13, 2017, Dr. David Epstein evaluated the appellant. The appellant advised Epstein that she was still having pain and discomfort in her knee. Epstein recommended gel injections, which did not remove the pain. Epstein then recommended another FCE.

Kinematic then performed a second FCE on Sept. 18, 2017, which documented that the appellant still had a deficit in her balance on her right side. The report concluded that the appellant had continuing pain in her knee, which was worse when bending, walking and standing. The FCE report concluded that the appellant could perform only light-duty work.

Following the second FCE, Gallick reviewed the results and reached the conclusion that the appellant was at maximum medical improvement for her workers’ compensation injury and was unable to perform the essential functions of her job. Epstein reviewed the second FCE and agreed that appellant was at MMI and was unable to perform her full duties.

On Sept. 28, 2017, the county served appellant with a preliminary notice of disciplinary action with the intention of removing her from her position. Following a departmental hearing, the county issued a final notice of disciplinary action on Nov. 19, 2017, and removed appellant from her position with the county.

Appellant sought a hearing following her removal. At the hearing, she did not testify but presented testimony from Dr. Donald Polakoff, who examined the appellant on May 1, 2019, and concluded that she could perform the essential job functions. He said the appellant was able in his office to hop on one leg at a time, do pushups and squats, and lift a box over her head while doing three knee bends. 

Polakoff admitted that he could not give an opinion on appellant’s fitness prior to May 1, 2019, because he had not seen her before that date. He also did not offer any expert opinion on the value of FCE reports.

The administrative law judge heard from various witnesses including departmental employees, Gallick, Epstein and Polakoff. She concluded on March 12, 2020, that appellant could not perform the duties of a sheriff’s officer at the time she was removed in 2017. She rejected the appellant’s argument that Kinematic may have improperly performed the FCE.

An appeal followed to the Appellate Division, and appellant argued that the county’s actions in removing her were arbitrary and capricious and never identified the essential functions of a sheriff’s officer.

The Appellate Division affirmed the dismissal of appellant’s case and rejected the argument that the county failed to provide proof of the nature and scope of her required duties. As an aside, the court also noted that appellant filed an application for an accidental disability retirement pension following her removal, which the Division of Pensions and Benefits deferred pending the outcome of the removal case.

In its decision, the Appellate Division gave deference to the expertise of the professionals who performed the FCE. The court also cited the applicable regulation, N.J.A.C. 4A: 2-2.3 (a) (3), which authorizes a public entity to remove an employee for inability to perform the functions of the job.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.