Expert Exchange – Ellen Rader Smith, MA, OTR, CVE, CPE – Ergo & Rehab Services

October 2, 2005

Most attorneys who handle Workers Compensation cases are familiar with functional capacity evaluations. These types of evaluations are often used by insurance carriers to determine whether an injured employee can perform the tasks required by a particular job. Functional capacity evaluations are also used in ordinary negligence cases when a lost wage claim is being asserted and a plaintiff seeks to prove that he can no longer perform his previous job. We have found, however, that functional capacity evaluations are almost always useful in catastrophic injury cases, whether or not a lost wage claim is being asserted.

By utilizing an expert to conduct a functional capacity evaluation on your client, you put yourself in a position to present expert testimony at the time of trial that provides an in depth description of all of your client’s day-to-day limitations, accompanied by a kinetic explanation for why those limitations exist. Functional capacity evaluations are structured to weed out malingerers, and when performed on catastrophically injured clients, they give you a method of objectively verifying subjective complaints about the plaintiff’s pain and limitations. While a plaintiff can provide a list of complaints to a jury, a functional capacity expert can explain why such complaints exist, and provide the scientific basis to support such testimony. In an environment where defense attorneys are constantly suggesting that such evidence is false and manufactured, this kind of testimony proves invaluable.

Ellen Rader Smith, principal of Ergo and Rehab Services, performs functional capacity evaluations not only for companies, but also for plaintiffs. Ms. Smith, who has both undergraduate and graduate degrees in Occupational Therapy, is also a Licensed Occupational Therapist in New Jersey and New York. She maintains certifications as a Professional Ergonomist and as a Vocational Evaluator.

Our office has utilized Ms. Smith to help bridge the gap between medical evidence pertaining to the impairment and vocational findings related to employability. Further, we have used Ms. Smith’s testimony to illustrate how a severe injury impacts an individual’s activities of daily living. For example, we have used Ellen’s expertise to show a severe leg injury with permanent nerve damage on a 28 year old male impacted his ability to play ball, go to the park, go to the beach, or simply roll around on the floor with his 1 year old son.

Studies have shown that it is often best to prove pain and limitation evidence through someone other than the plaintiff. Jurors are inherently skeptical of plaintiffs who provide self-serving statements about their limitations. Utilizing an expert to conduct functional capacity evaluation on your client will enable you to present evidence of permanent disability and loss of enjoyment of life through a person other than your client in a scientific, professional manner. Ellen Rader Smith can provide valuable information that will help your seriously injured clients. You can e-mail Ellen by clicking here. You can visit Ellen’s website by clicking here.