Henrico County Public Schools v. Mack: What the Court of Appeals Decided About Who Pays for an Impairment Rating Included with an FCE

Written by Corey R. Pollard · Updated October 2026

In Virginia, the employer and insurer must pay for a functional capacity evaluation (FCE) your treating doctor orders to diagnose your medical condition or determine your work restrictions, even though the same evaluation also produces the permanent impairment rating you need to qualify for permanent partial disability (PPD) benefits. The Court of Appeals of Virginia said so in Henrico County Public Schools v. Mack (March 18, 2025), a case my firm argued and won. The Court punted on the larger question employers, employees, and insurers want answered: whether the employer and insurer must pay for an FCE ordered only for a rating.

For the full rule on FCEs, who orders them, what they cost, and their role in your case, see the functional capacity evaluation page; this note is about the case.

Pre-Mack treatment of the payment of impairment rating evaluations

For most of my time practicing workers’ compensation law in Virginia, the Commission’s answer to “who pays for the impairment rating when the doctor orders it independently or as part of an FCE?” was: the injured worker.

Insurers argued the impairment rating served one end: to provide the evidence needed to receive permanent partial disability benefits, and that litigation expenses are not treatment covered under a lifetime medical award.

Claimants’ attorneys like me argued that the Virginia Workers’ Compensation Act is construed liberally and that the American Medical Association’s (AMA’s) Guides treat the permanent impairment evaluation as necessary medical attention, making it the employers’ and insurers’ financial responsibility.

For years, the majority of the Workers’ Compensation Commission sided with employers and insurers, with Commissioner Marshall, the employees’ representative, dissenting whenever the issue arose. Finally, in Elliott v. Sam Green Vault Corp. (October 5, 2021), Commissioner Newman joined Commissioner Marshall, holding that employers and insurers should pay for the impairment rating. This marked a change in Commission precedent.

Mack was the first time the Court of Appeals could answer who pays for an FCE for a permanent impairment rating definitively post-Elliott. Unfortunately, it did not, instead deciding the case “on the best and narrowest grounds available.” But it affirmed the Commission’s holding that the employer had to pay for Mack’s diagnostic FCE with an impairment rating.

Even better – it gave every injured worker a roadmap for forcing the employer and insurer to pay a rating as part of the FCE.

What happened to Mack

Ms. Mack suffered compensable injuries to her right knee, left wrist, and a finger on her left hand.

Dr. William Beach operated on the knee, saw her six times afterward, and ordered physical therapy and a home exercise program. In November 2021 he found she had reached maximum medical improvement (MMI) and told her to come back as needed.

In May 2023 she did just that, following up with Dr. Beach for intermittent pain and swelling in the knee. Dr. Beach examined her and developed an “assessment and plan” based on his “review of pertinent history, physical exam, labs, studies, and medications.” This plan included an FCE and an impairment rating, with instructions that Mack return after the FCE “for reevaluation and further discussion.”

The employer refused to pay, so Mack sought authorization and payment.  

A deputy commissioner held for Mack after the parties submitted written briefs. The employer requested review, but the majority of the Full Commission affirmed in March 2024, relying on Elliott.

What the employer argued to the Court of Appeals

The employer’s position was the one that had worked for approximately 16 years: an FCE done solely to produce an impairment rating is not necessary medical attention that advances an injured worker’s recovery. Instead, it is simply a litigation expense that claimants should bear.

Sidebar:

I was not surprised that the employer appealed this case to the Court of Appeals of Virginia. After speaking with several insurance defense attorneys beyond Elliott, the defense bar seemed split between those who wanted to overturn Elliott and those who thought doing so would offer little benefit to their clients.

Those who did not see a reason to overturn Elliott pointed out that if the employer and insurer did not pay for the impairment rating, then claimants’ attorneys like me simply send our clients to physicians of our own choosing for the rating, and the carrier would then pay for a rating of its own to rebut it. So it pays either way.

The Court of Appeals agrees with our position

A panel of three judges affirmed the Commission, finding that Mack’s FCE was not ordered for the sole purpose of obtaining a permanent impairment evaluation. This was the employer’s entire argument.

Rather, the court found that Dr. Beach ordered the FCE as a diagnostic medical test to treat lingering issues related to the compensable injury and to determine whether her work restrictions should be changed to prevent aggravation or deterioration of the compensable injury.

In reaching this decision, the court applied the test from Herbert Clements & Sons v. Harris for when an employer is liable for a diagnostic procedure. Under this test, an employer must pay for a diagnostic procedure ordered to determine (1) whether the claimant’s current condition is related to their compensable work injury; (2) the degree of the injury from the work accident; and (3) whether the claimant needs additional medical treatment for the injury.

What Mack means for your claim

This decision turned on one fact: why the doctor ordered the FCE and impairment rating. This is where every injured worker should focus to ensure the employer and insurer have to pay for the permanency evaluation as part of a diagnostic FCE.

1. The documents decide it. If your treating physician’s office visit notes or referral order says the FCE is to assess your current function, determine what additional treatment you need, or set restrictions, you have a good chance of obtaining payment for the FCE and impairment rating. If the paperwork says, “FCE for impairment rating,” with no other documents explaining why you need this or what to do afterward, the carrier will argue that Mack does not control the outcome of your case.
2. Ask the doctor before the referral for an impairment rating, not after. Tell your doctor about every ongoing symptom you have and what you can’t do at work. If the doctor is deciding whether to change your restrictions, release you to full duty, or refer you for more treatment, ask the doctor to put that in the office visit note or referral, and to state that the FCE is needed for those reasons. The impairment rating comes from the same evaluation; it doesn’t need to be the primary reason for the referral.
3. The FCE rating is valid. The impairment rating the diagnostic FCE produces is strong evidence to prove your entitlement to PPD benefits. Under Mack, the carrier pays for the test, and you keep the rating for your PPD claim.
4. Authorization first. In Mack, the employer refused to authorize the FCE with an impairment rating. If the employer or insurer denies this medical treatment, file a claim for specific medical benefits with the Commission.

How the carrier reads an FCE referral

When I represented employers and insurers who received requests to pay for an FCE with an impairment rating, they rarely asked whether the FCE was useful medical treatment or vocational rehabilitation. Indeed, employers and insurers often want an FCE to clarify restrictions, since those tests evaluate how much effort the injured worker gives and, depending on the examiner, commonly say the injured worker did not give it their all.

Instead, the question was whether the injured worker wanted the FCE to help them heal and return to the labor market, or whether they wanted proof of permanent partial disability to get an additional payment. If possible, the employer or insurer would try to separate the FCE from the impairment rating and authorize only the FCE, not the rating itself.

After Mack, an FCE referral that includes a rating, combined with the physician’s statements on how it will help them determine next steps, will likely get authorized, while a vague referral may not. The words in the doctor’s note or order script count more than the argument at the hearing.

If the insurer is refusing to pay for your FCE and impairment rating

Call (804) 251-1620 or request a free case review.

Usually all I need is the referral note, the office visit report, and the insurer’s denial to tell whether Mack likely covers it and what to ask the doctor to add if it does not.

About the authorCorey Pollard is a Virginia workers’ compensation and Social Security Disability attorney in Richmond. Best Lawyers in America® (2020–2026), $100M+ recovered, and a former insurance defense lawyer — which is the part that matters.