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Actions might speak louder than words, but do they speak more truthfully? That they do is the premise behind a newly patented test, the “digital video functional capacity assessment” or DV-FCA. Its inventor claims the technology can provide an objective evaluation of whether someone is faking an impairment, especially a claimed injury that doesn’t show up on an X-ray or MRI. PhysioMetrics Inc. of Marlton, N.J., which owns and administers the technology, boasts on its Web site (http://www.physiometrics.net/) that it has a greater than 99.9 percent success rate in discriminating between real and fake efforts. “If you’re shoveling garbage, you know what the result is going to be,” says the inventor, physical therapist Keith Marmer. The $675 test works as follows: The subject is videotaped while performing a series of 20 motions — including walking, lifting and bending — as well as different ranges of motion and repetitive movements. The motions are taken from the U.S. Department of Labor’s “Dictionary of Occupational Titles.” To test lifting and carrying motions, for example, the subjects are given a box of weights in increasing 3-pound increments. For other movements, such as standing and walking, surface electromyography (EMG) is used to determine the rate of muscle fatigue. The filmed movements are then analyzed by a computer program that applies statistical analysis to 59 factors, including acceleration, velocity and time. The program generates graphs allegedly showing the subject’s ability to perform each task and consistency of effort in doing so. According to the Web site, there are four possible outcomes. “Indeterminate effort” is the result when the subject refuses to perform most of the test. “Consistent effort” provides a measure of what the subject is able to do, based on a valid effort. Between those extremes are two outcomes that reflect performance below the subject’s capability. The first, “sub-consistent effort,” signifies that the sub-par performance is unintentional and attributable to “underlying psychosocial factors,” such as fear of re-injury. The second, “inconsistent effort,” flushes out the fakers based on their intentional misrepresentation of abilities. Marmer estimates that his company has administered the test 3,000 to 4,000 times in 37 states during the past few years. No judge has considered the reliability and admissibility of the DV-FCA, primarily because use of the device leads to settlement, he says. INSURANCE COMPANIES USING IT His biggest customers have been insurance companies and employers who use the device to set reserves in particular claims, settle cases, and determine whether an employee is ready to return to work and at what level. Marmer says his employees have twice given deposition testimony about the test but neither of the referring attorneys he identifies — Dennis Platt of Hartford, Conn., and Shawn Keeney of Harrisburg, Pa. — could be reached for comment. Though the DV-FCA so far has mainly been used to defend claims, Marmer likens it to DNA evidence that can be used by both sides. Marmer says a typical customer is nurse Diane Harper, who runs York, Pa.’s Coordinated Case Management and describes herself as very satisfied. In about 100 uses of the DV-FCA to settle cases or decide an injured employee’s readiness to return to work, its results “have yet to be inconsistent with other tests the physician might use,” she says. Another believer is matrimonial lawyer Robert Garber, a partner in Cherry Hill’s Kasten, Jarve & Mullen. He and several fellow investors recently put a total of $2 million into PhysioMetrics, Marmer says. Garber, who learned of the test a few months ago, says the test has been mainly used so far in workers’ compensation cases. Though his firm handles such claims, it has not used the test, he says. But for all of Garber’s optimism, others are resistant. “I’m always skeptical of tests that purport to be the be-all and end-all,” says plaintiffs’ attorney Bruce Stern of Lawrenceville’s Stark & Stark. “Every year there’s a new gimmick that someone tries to sell us,” adds plaintiffs’ lawyer Gerald Baker, who doubts New Jersey courts will accept the DV-FCA. “Someone would have to go a long way to convince me of the scientific value of this based on the fact that the licensing board of New Jersey has rejected this as a test,” says Baker, a partner with Baker, Duffy, Garber & Pedersen in Hoboken. His comment refers to the DV-FCA’s reliance on surface EMG, which is not reimbursable under PIP regulations. N.J.A.C. 11:3-4.5(a) lumps surface EMGs with other procedures such as iridology, spinal diagnostic ultrasound and reflexology as not reimbursable. The regulation says such procedures “have been determined to yield no data of any significant value in the development, evaluation and implementation of an appropriate plan of treatment for injuries sustained in motor vehicle accidents.” “This will be Daubert, this will go right into an in limine motion,” Baker predicts, referring to the standard of scientific reliability established by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). As to the claim that the test can ferret out fraud, he says, “every doctor I’ve spoken to is convinced that no one can fake their test.” Peter Chamas, who also represents plaintiffs, questions the claim of 99.9 percent accuracy. He says he “can’t imagine that this thing is that accurate and that there is no way to manipulate it based on what’s on the Web site.” He wonders, in particular, how the surface EMG is used and how the computer program that analyzes the data works. The Web site fails to explain those issues, says Chamas, of Gill & Chamas in Woodbridge, N.J. To Chamas, the Web site appears targeted to the insurance industry and defense purposes, which raises a red flag. “Anytime they start there, it makes me a lot more skeptical,” he says, even though Marmer says the test can also help claimants prove that they are not faking injury. Some defense attorneys are skeptical too. “Sounds like voodoo,” says New Jersey Defense Association President-Elect Brian O’Toole, of Whippany’s O’Toole & Crouch. “The only things that are objective are MRIs and needle EMGs,” he says. “Everyone’s looking for ways to objectify injuries from both sides, something concrete you can show a jury,” says Arthur Leyden III, a vice president of the association. But “we’re cautious and say ‘show us, it’s got to be something that will hold up in court.’ “ Daubert is not the only reason to proceed cautiously with an unproven technology. “We’re cautious because the juries are skeptical,” explains Leyden, a partner with the Toms River, N.J., firm of Lomell, Muccifori, Adler, Ravaschiere, Amabile & Pehlivanian. “Before I give it a try, I would like to see more information,” says Leyden, referring to the need for peer-reviewed studies to back up the claims. Plaintiffs’ attorney Lee Goldsmith, who is also a physician and past president of ATLA-NJ, also questions the validity of the DV-FCA. “I have to see statistical analyses of this type of material” and despite purported objectivity, “what they programmed in may very well be subjective.” Goldsmith, a partner in the Englewood firm of Goldsmith & Richman, compares the DV-FCA to lie-detector tests, which have been around much longer, yet “no court buys a lie detector test to this date.” “I could see where people would want to use it to intimidate, but where is the valid research, how has it been peer-reviewed?” he asks. In fact, the company Web site does include a study that Marmer says is being reviewed by physical and occupational therapists at the University of the Sciences in Philadelphia. The claimed 99.9 percent accuracy rate is based on that research, says Marmer. But Curtis Woods, a defense attorney in East Windsor, N.J., who does consulting work for defense attorneys and insurance companies, questions the study on several bases, including its reliance on young, healthy test subjects. Woods is researching causes of chronic disability and says he has been looking into ways to tell if people are faking pain. The research shows, he says, that chronic pain often has a psychological component, such as depression or stress. He criticizes the DV-FCA for failing to take into account psychogenic causes, the effect of other nonmuscular factors such as medication, and conditions like diabetes and thyroid ailments. “Where do they get the baseline data they use in the computer program?” he asks, pointing out, for example, the variability in individual ranges of motion. Marmer’s response: the other methodologies being used to measure functional capacity also have no published research behind them and at least PhysioMetrics is trying to provide it.

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