A growing trend seen in long term disability insurance claims is an insurers’ request for a claimant to undergo a Functional Capacity Evaluation (“FCE”). However, for several reasons, attending an FCE may be harmful to your claim. And, many policies do not have any contractual language obligating claimants to attend. Even those that may require a claimant’s attendance at an FCE may still permit a claimant to object.
An FCE is a series of tests of strength, flexibility, endurance, pain, cardiovascular fitness, materials handling (lifting ability), coordination, static posturing, repetitive movements and other tests. These types of activities could cause claimants to suffer severe exacerbation of their conditions and is potentially extremely dangerous to their health.
It is the position of the Law Office of Justin Frankel that an FCE is both dangerous and inherently unreliable evaluation which does not afford a claimant a fair review of their claim. In the medical journal Physical Therapy, an extensive article was published concerning FCEs. In this leading article, the authors concluded that there are significant safety issues regarding FCEs. They note that injury can clearly occur because the patient is being asked to perform physical tasks in order to demonstrate maximal effort. The only way that exacerbation of injury and additional injury could be avoided is if a therapist were able to note an exterior visual sign that there was unsafe performance of a particular procedure. However the authors conclude there should be criteria available for determining when maximal effort has been put forth and when to intervene. To date, no such criteria exist. They also note that intervention by the therapist decreases the validity and reliability of the tests. Thus, there is a built-in incentive for the therapist to not intervene, thereby placing the patient at significant risk of harm. The authors conclude that currently there is no infallible method for determining a safe stopping point during the conduct of an FCE. Rather, as seen time and again in our review of claimant’s FCE results, a claimant forced to stop due to health risks will be accused of a sub-maximal effort.
Moreover, the above referenced article published in Physical Therapy contains innumerable reasons why FCEs are completely unreliable. Those reasons include lack of research, lack of protocol, lack of uniform criteria, lack of standardization, lack of an ability to project what a patient could perform during an 8-hour work day, significant safety deficiencies, and nearly no peer-reviewed journal articles regarding reliability. The article details these numerous deficiencies, as well as many others. For example, if a patient is unable to participate in various aspects of the FCE, there is no reliable and valid method of determining, by any research whatsoever, whether the patients lack of participation is due to the experience of pain or inability. The tester could unilaterally conclude, without any valid or reliable basis, that the patient is not putting forth her maximal effort.
Therefore, a Claimant should ensure that they are required, from a contractual standpoint, to undergo an FCE. Even if required, an insured should discuss the potential for harm with their treating provider, who should be required to authorize a claimants participation in such testing. If your insurer has sought to compel an FCE, for continued consideration of your long term disability insurance claim, please do not hesitate to contact our office to see how we can assist you.
Justin C. Frankel is committed to fighting for the rights of clients when their long term disability insurance claims have been denied, delayed or terminated.