In addition to IME’s (Independent Medical Examinations) insurance companies are also known to use Functional Capacity Evaluations, known as FCE’s, to analyze a claimant’s disability. These evaluations assess the ability to perform a series of tasks which simulate customary job duties and determine the extent to which the claimant can complete these job duties on a regular basis. FCE’s can have different focuses and purposes and be referred to as Physical Capacity Evaluations, Work Capacity Evaluations, or Disability Assessments, but they all mean the same thing: the insurance company is attempting to use a biased and flawed evaluation system to challenge the statements of you and your doctor about your ability to return to work.
There are several things you can do to protect yourself against an FCE. The first option is the simplest: Don’t take it! Almost all disability insurance policies provide the right for the insurance company to have a medical examination of a claimant applying for benefits. Some policies go on to mention IME’s – but very few policies explicitly require FCE’s. Claim examiners commonly interpret that policy language as the basis to demand FCE’s. The problem with that demand is that FCE’s are drastically different than a medical examination. FCE’s are designed to test limits – and sometimes exceed those limits. FCE’s can require constant, strenuous activities, including pushing, pulling, lifting, carrying, squatting, and bending, performed for long periods of time. FCE’s are very often given by a physical therapist instead of a licensed physician. This can lead to an exacerbation of symptoms during the days after the completion of the FCE, which can be both dangerous and borderline unethical. Some vague clause in an insurance policy shouldn’t require a claimant to submit to dangerous and biased testing that almost always negatively impacts the continuation of disability benefits.
If your policy contractually compels you to participate in an FCE, understand going in that an FCE isn’t an independent or neutral exam.
FCE’s are designed to show the extent to which you can work. It’s also important for you to understand the other issues that arise in FCE’s. First is the risk of injury. FCE providers may not be focused on any post-testing impacts to the claimant and aren’t an attending or treating physician. If a claimant is injured during an FCE, the disability insurance company isn’t going to accept liability, and the post-testing impact is routinely ignored. In addition, it’s simply impossible to use any single test in such a controlled setting to attempt to extrapolate the full occupational duty functionality of a claimant. For example, claimants suffering from conditions such as Fibromyalgia may be able to function for the couple of hours of an FCE due to the normal variances in their symptoms, but the reported conclusions of the FCE won’t take into account that such claimants were completely exhausted and/or in excruciating pain at home following (and due to) the testing. The written FCE report will misleadingly depict an individual who could complete most of their work-related tasks.
Aware of all of these concerns, you can now plan how to handle and neutralize the inherent bias in an FCE. Some of the best tips are the same as in our article on IME’s: bring a witness to record and make copious notes during the examination. FCE’s are often incomplete due to time restrictions of the examiner. We’ve heard stories of FCE’s that were done in less than thirty minutes with no questions asked, yet the examiner produced a multi-page detailed report stating that the claimant was able to return to work. Having a witness with you helps gather evidence to show that the exam was incomplete or flawed and point out inconsistencies in the FCE report. Your witness should be fairly assertive and not have a problem questioning whether you should be doing something or asking for a break when you need a break. They’re there to protect your personal needs during the FCE and document what actually took place.
Try to schedule an appointment with your treating physician as soon as possible after your FCE to document any setbacks or injuries caused by the FCE. Your physician should also perform the same tests as the examiner did in the FCE to make sure no mistakes were made and the conclusions are the same. Most FCE examiners book many patients everyday, compromising their ability to focus on your FCE. Reports are written at the end of the day or even later in the week based off notes jotted during the exam. Before the exam, the physical therapist is provided information and briefed on the concerns of the claims examiner, who ordered the FCE.
Your treating physician can also document medical records reaffirming your disabling restrictions and limitations at the time of the FCE. This is especially important for anyone suffering from conditions such as Fibromyalgia, Lyme disease, CFIDS, or other pain syndromes for which the symptoms vary. Disability insurance companies cannot disregard the opinion of the treating physician without specific reasons, and this can be used to undermine the results of an FCE that negatively impact a disability claim. If you don’t visit your treating physician, the sole voice or evidence is that of the FCE examiner.
It’s possible though uncommon to receive a fair and unbiased FCE. These evaluations properly test and measure limitations and restrictions reliable data and generally accepted testing protocols rather than relying on the subjective opinion of an examiner who’s prepped by the claims examiner and sees the claimant once. It’s unlikely that disability insurer would pursue this defense if it wasn’t effective. Disability insurance companies doesn’t schedule FCE’s to reaffirm your and your doctor’s opinions about your restrictions and limitations but rather to find reasons to discredit those factors and obtain the biased opinions of well paid “experts.” If you’ve been notified that the insurance company wants you to have an FCE, we recommend that you seek the help of a experienced disability professional to help you understand your rights and guide you through the process.
If you have any further questions about Functional Capacity Evaluations, your ability to refuse them, or any other disability insurance issues, please feel free to call us toll-free at (855) 828-4100 or visit our website to sign up for a free consultation.