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Can a disability insurance company rely on a Functional Capacity Exam (“FCE”) to deny long-term disability benefits?

Unfortunately a recent Appellate court answered this question yes. Every disability case is distinguishable so for every case that says an FCE is reliable evidence of disability, there is another case that will say it is not reliable. Additionally, it is rare that an FCE on its own is enough to support a disability denial. Functional Capacity Examinations (FCE) requested by disability insurance companies are frequently used by disability insurance companies in an effort to deny disability benefits. There is no consistent law which states that if an FCE determines a person can work, then the claimant must not be disabled. To learn more about FCE exams and what to expect you should watch our video discussing FCE exams.

Lets take a look at a recent disability denial that was reversed by the district court, but then overturned in favor of the insurance company by the Appellate court. This disability insurance case against Union Security Insurance Company (“Union”), also known as ASSURANT, sheds light on how a court can view a Functional Capacity Exams.

Disability Attorney Sues Union Security Insurance Co. (ASSURANT)

When he was thirty-five years old, Charles Green began working as a light industrial warehouse worker for Andersen Distribution, Inc (“Andersen”). As an eligible employee, Green participated in Andersen’s LTD-benefits disability plan insured by Union. In February of 2001, Green stopped working citing physical pain as preventing him from being able to work. Under his policy, during the first 24-months of disability, a claimant must be prevented from performing at least one of the material duties of his “regular occupation” to qualify for benefits. After the 24-month period, a claimant qualifies if his disability prevents him from performing at least one material duties of “any occupation.”

After applying for benefits, Green was awarded LTD benefits under the “regular occupation” of the policy for 24-months. However, after 24 months, Green was denied LTD benefits after Union determined Green did not meet the Policy’s “any occupation” definition of disability.

Green subsequently brought an action against Union in the United States District Court for the Western District of Missouri challenging Union’s decision. The District Court issued judgment in favor of Green and Union Security appealed the decision.

District Court improperly concluded FCE was of “limited value”

When reviewing Union’s decision, the District Court reviewed the record containing records of an FCE and video surveillance conducted by Union of Green’s activities. The district court had discounted the FCE which was conducted over a period of two days and which concluded that Green was capable of working in a full-time sedentary job, contrary to Green’s assertions.

The Court of Appeals disagreed with the lower court and concluded that the district court improperly discounted the FCE explaining that “it is true an FCE can only provide a ‘snapshot’ of a claimant’s functional capacities, but this does not render the FCE of ‘limited value.'” Rather, the court concluded that an FCE provides objective clinical evidence regarding how a claimant’s condition affects his ability to work.

Assurant Relies on FCE exam and Video Surveillance to Deny Disability Benefits

This case is unusual as it is not often that an Appellate court will reverse a lower court finding in favor of a disability claimant. Additionally, this case is not great for disability claimants as it can allow insurance companies to try to rely on unreliable FCE exams. If a claimant has an FCE set by an insurance company, then must be aware of the type of testing that will be administered and they must be prepared. The case against Assurant is distinguishable as the Assurant also conducted video surveillance of the claimant for two days. The combination of the video surveillance and the FCE was something that made the Appellate court overrule the decision of the lower court. Due to the unfavorable arbitrary and capricious standard of review in ERISA governed cases, the appellate court found that ASSURANT did not act unreasonably.

There are 44 opinions so far. Add your comment now.

Robin Colquitt:

Incredible site to get so much information. Has addressed so many of my questions and made me decide to tell my colleages to go to your site for so many concerns. I have had an exceptional experience with this web site and your firm. I know I will be calling for my free consultation. Thanks for so much help.

Attorney Greg Dell:

Robin,

Thank you for your comments. We appreciate your feedback.

Marcie:

I agree this site has been invaluable to me in keeping my long-term disability claim alive. I have an often times fatal disease and went out on disability last year before being diagnosed. If you think I’m on Easy Street now with a diagnosis, think again. They are still playing their games and trying to deny me benefits.

Attorney Greg Dell:

Marcie,

We are glad that you have found our site helpful. In an effort to continue sharing helpful disability insurance information we have started a Facebook page which you can like by going to Facebook.com/diAttorney.

Cecilia De Rouin:

I took a functional capacity test on Feb. 10, 2012 and I passed with a 97.3%. I reached my PDL which falls under medium to heavy for my job, which is a package handler and loader for UPS. Now my Ins. Co. said I have to take another one because she claims she sent the wrong job description. My point is that I want to return to work and I still did the PDL which is required for my job. Do I have to go through that again? My doctor released me for full duty and no restrictions.

Attorney Greg Dell:

Cecilia,

If you are ready to return to work and your doctor has released you, then the functional capacity test appears to be worthless. You should send a letter from your doctor to the insurance company stating that you have no restrictions and limitations at this time.

Jean:

I also took this test.I was in so much pain. I want to the restroom many times. Just to sit and rest. They reported it took 4 hours when it took 5 1/2 hours. They reported so many things that were not true. So they said I could work a full time job. Light duty. I can’t believe this. So I have filed a appeal. Stating all that was not true on the report. They didn’t report when I stopped twice on the treadmill. They didn’t report the correct time of testing. They didn’t report that I couldn’t lift the crate or cart with weight in it. That all weight had to be removed. They did not report that I was sick and going to throw up. That I had to go to the vending area to get some crackers and something to drink. The didn’t report I had to stop and take pain medication. Well, they report what they want. So now I have lost my benefits. Not sure how to fight this. But I’m going to try. I wrote them a letter. With regards to many errors on the report. I’ll keep you posted.

James S.:

I took an F.C.E. today and was able to do most of the tests, even 50lbs but I struggled. The O.T. that administered the test only had me do five reps with lifting the weight. When I demonstrated to him some of the movements I did at my job he said they would result in a reinjury of my back or I could incur a similar injury to my current. I was only allowed to take the test on my current pain medications. I had trouble with exercises of bending at my hips and also had difficulty with walking after a few exercises that he observed but he said I did pretty good. My job doesn’t have light duty jobs… will I be required to return to work on his vague observations or will my neurosurgeon prevent my return without restrictions? If I can’t return to work what options do I have, LTD or will I get vocational training?

Attorney Stephen Jessup:

James,

Depending on the results of the FCE and the physical demand level you will fall under based upon the results; the insurance carrier could very well use the report as a springboard to get one of their doctors to opine that you would be able to return to work. That is not to say that any denial would ultimately hold, or that your case will even be denied, it is just a possibility that happens quite often. In the event your claim is denied, please feel free to contact our office to determine how we may be able to assist you.

Matthew:

I was sent to do a FCE after one year of severe pain from a SI Joint injury. I was on crutches and couldn’t sit or walk. The PT asked me if I understood what the test was all I about and I said yes. She then asked if the doctor knew I was on crutches and I said yes. I had been on them for 5 months. She said I was not a candidate for a FCE because of my condition. She phoned the doctor, who told her he needed numbers anyway. Couldn’t perform any of the test because I couldn’t perform without the crutch. Even though they didn’t dot the test they seemed to find me 5/5 on the Waddell test and found me self limiting. Heck yeah I was self limiting… I am in severe SI Joint pain and you’re trying to get me to walk up stairs? Sounds like a cooked test to me. I lost my LTD and TTD and my job. I told the doctor there was no way I could work with this condition… he said even people who are paralyzed neck down can do some form of work. So, here I am 6 months later still on crutches, still not being able to sit or walk. Now I’m paying out of my pocket to get further treatment on a condition I shouldn’t have been found MMI to begin with. Yea, I love the FCE… worked in my favor quite well, didn’t it?

Forgot to mention. He said I was self limiting, but found me at 7% impairment.

Attorney Stephen Jessup:

Matthew,

Was the FCE something your doctor scheduled or the insurance company? Also, was this for purposes of a disability insurance claim or some other insurance claim?

Matthew:

Mr. Jessup,

It was a workers comp injury. The doctor ordered the FCE once he decided I was MMI. My doctor said I was MMI because the SI Joint injections did not help me at all. I told him it’s because they did Intra-articular and not extra-articular shots. He disagreed and said there wasn’t a shot for extra-articular. I started going to a dr in March who disagreed with my WC doctor and has given me two nerve blocks that have worked. He is now suggesting that I have the nerve ends burned. My new doctor said I should have never been placed at MMI because it was more than evident that my damage was ligament and nerve. I thinking about trying to have my case reopened based on Mutual Mistake of Fact. I was not at MMI and should not have been given an FCE or sent back to work.

Because of the finding of MMI, my attorney said I didn’t have any other option, but to settle out to get a lump sum. I tried to get him to help me get another doctor, but he said the FCE and the MMI was enough that another dr wouldn’t help. I had already been off work over a year and was desperate for money (raising four kids). I told my attorney the FCE was wrong and I am not malingering. My pain was legit and I couldn’t sit or walk at all. My new doctor proved me right and is fixing what should have been done over a year ago. I believe my WC doctor caved to the insurance company and forced me through a test that I couldn’t do just to get numbers. Apparently it worked because I was sent packing with severe pain, no job, no ltd and no wc. All he had to do was put a block on the nerve endings… that’s all.

Attorney Stephen Jessup:

Matthew,

If you have already settled your Worker’s Compensation case, I don’t know what else could be done. You may wish to consult with another Worker’s Compensation attorney who may be able to give you better direction. Did you ever file a short or long term disability claim under your employer’s policy?

S.:

I found your note very helpful. I have recently completed the fifth FCE for my disabilty insurance requirement. The previous ones were all prior to 2003. It is a painful thing no matter how nice the FCE evaluator is. Mine was kind, considerate and told me a pain threshold to stay within so as not to cause damage. That was yesterday, today I am much more pain than I have been for a while but it is ebbing as the day goes on.

I was told by the insurance company that they would have to decide if they could release results of the FCE to me. I was under the impression and even signed a form at the OT/FCE exam saying that I understood I had the right to all records taken during the FCE including the information form and guidelines as well as my personal test scores/notes etc.

So how can the disability company say they have to get permission from their medical assessment depaertment after the FCE results come in if the fact that I have a right to my records is a done deal?

Do you have any wisdom into this?

Thanks.

Attorney Stephen Jessup:

S,

There are times when the insurance company will not release a report to the insured. In the alternative you can request a copy be sent to your treating physician. Usually, the insurance company does not have a problem doing that.

LTD Is Unreal:

I have had a C3 C4 C5 discectomy and a decompression of l2, 3, 4 5 a year ago. I have been getting epidurals around 18 in the back and 6 to the head for pain and headache. The LTD wants me to do a FCE I have told that I will comply after the surgon agrees to alow me by the way I have a crack in my l5 and a slippage of over 1 cm. They will probably deny my claim once they hear the message that I need approval from the surgeon. I am scheduled for a epidural shot Tuesday this week and the week after 6 epidurals to my back. Should I tell the LTD or cancel the shots? I am also having a spinal cord injury, how can the LTD expect me to comply. I also have incontinence bowel and bladder. The LTD is messing with me and am stressed.

Attorney Stephen Jessup:

LTD is Unreal,

It is not unreasonable to await approval from your surgeon before undergoing the FCE. It would also be wise to advise that you have the upcoming epidural shots.

Sharon W.:

I have seen my surgeon today and got good news and bad news. Good news is I do not need surgery because it appears the fusion finally took after a year and the bad news is that the pain is permanent nerve damage. This is in my right arm and hand which I am right handed. He also knows I am on LTD and have applied for SSDI. I also have a lower back problem that cannot be fixed. As he put it there is not surgeon in their right mind that would do such an operation because all the bones in my lower back would have to be fused together and he said this could cause even more pain. My surgeon suggested that I go and get an FCE on my own and not wait to see if disability would ask me to get one. Also have been told this test is going set me back $700 to have done, this is money I do not have. I am also under pain management care which the medication cannot even take the edge off all the pain I am going through. Do you advise that I go and get the test done on my own or should I wait and see. I have heard that if I wait and am asked to get it done that they will rule in favor of SSDI. Please advise any and all help is greatly appreciated.

Attorney Stephen Jessup:

Sharon,

As it relates to a private disability insurance carrier I am of the opinion that it is wise to be proactive with testing as it is unlikely that your insurance carrier will send you for an FCE. Typically an insurance company is more likely to deny your claim for what it purports to be a lack of objective evidence of restrictions and limitations on account of your medical conditions. This “objective evidence” is often best accounted for by way of an FCE. As such, being proactive and having that information readily available could prevent the carrier from denying the claim based on the preceding. Please feel free to contact our office should you have any questions.

Jay Brown:

I had a FCE exam on last week; this week I saw an Orthopaedic in which my chiropractic Dr. referred me to. The Orthopedic said she’s sending me for an MRI and a specs exam! Will my benefits stop? I have no idea wat the results were of the FCE. I haven’t received any notification as of yet stating my benefits have stopped.

Attorney Stephen Jessup:

Jay,

I assume it the FCE was requested by the insurance company? There is no way at this point to determine if your benefits will be stopped based upon the findings of the FCE. Please feel free to contact our office to discuss your claim in greater detail to determine how we may be able to assist you.

Anastina:

This was very helpful, I also have done the FCE and it was in my favor 100%, but my doctor is a workers comp doctor and he requested the FCE and laughed at the results and just lowered my lifting, pushing, from 40 to now 20 pounds and said theirs nothing more he can do for me. I also have applied for SSD, I was hoping my FCE help me get SSD benefits faster. Thank you for this helpful website.

Brit:

I was diagnosed with a rare disease called system sclorsis. I have Interstenial lung disease and raynaulds. I had a Stem cell transplant June 4 2013 to stop the progression of the disease. Which so far has stopped the progression. My insurance company Guardian made me have a FCE in January and I did well. I am 35 years old. I can do something normal one day and need to rest for three days. I have tried to work just to see if I can do it and I can’t make it. My body doesn’t work right anymore. I have pain, I have 55% lung capacity, and if it’s cold my hands will be purple and I will be stiff. I wake up like a 90 year old women because my body is so stiff. my disease is rare even my doctors don’t really know what to do with me. I am going to appeal but I need to know if I have a chance, should I have legal counsel? I applied for SSI last year and was denied but I know if I pursued it I would of got it but I was scared of I got it I wouldn’t be able to work part time because of my Disabilty policy. I need help. I have already sold cars, taken savings while I changed my entire lifestyle to survive of my Disabilty and now nothing. Help please

Attorney Stephen Jessup:

Brit, it is always wise to discuss a denial of benefits with an attorney. Please feel free to contact our office to discuss your claim in greater detail and to determine how we may be able to assist you.

C. Saunders:

If you had a FCE and your condition got worse – and your doctor ordered another one that clearly shows you are much worse than when you took the first one, can a long term disability company only use the older FCE to determine your claim? This is in North Carolina.

Attorney Stephen Jessup:

C. Saunders, the carrier should be reviewing both FCEs (and all other information) to determine disability. The only time that a carrier would foreseeably only review the older in time FCE is if there is a question as to whether you were disabled during the initial elimination period (when you ceased working). Please feel free to contact our office to discuss your claim further.

cda:

I had 360 spinal fusion one year ago. Recent mri states post laminectomy, bilateral laminectomy psedomengocle facet joint hypertrophy. Orthopedic surgeon verified that as well as stating no sitting, standing or walking more than 15 min radiclopothy recommended pain management possible lead to simulator implant pain management assessed ; lumbago, herniated lumbar disk, lumbar facet syndrome, postlactomy syndrome, stenosis, radiculopathy, depression psychologist has me at temp total major depression but i am being sent for an FCE, should i be worried? What is end goal of provider?

Attorney Stephen Jessup:

CDA, I do not follow your questions. Who is sending you to an FCE-your doctor or a disability insurance carrier? If it is your doctor you would have to consult with him/her as to why they feel it is necessary. If it is an insurance carrier they are trying to establish restrictions and limitations for work.

Michael F.:

I have 7 bulging or herniated discs, one compound fracture, mostly lumbar and fracture is in the thoracic. Ive had to prove these were not work related, that I am in fact injured over the course of 3 months. Now a month after I’m receiving payments for short term disability ( I honestly just need time for the discs to go back home, there is a lot of damage but it’s mostly reversible with time, rest and stretches) I am not being tasked with getting q functional capacity evaluation. And as far as I know this is something generally people applying for long term receive. It’s uncertain if my insurance will cover it and it looks to be in the tune of 850 dollars I certainly don’t have after receiving 50% of my wages the last 3 monts, compounded with the onslaught of copays and cost of the two epidurals.

Enough conjecture. Is it normal to ask for an FCE for someone on short term for 3 months? Is there anything I need to know about, or question them on? It certainly seems like they’re trying to cut me off trust me I want to go back to work, I make commission, my compensation is based on holiday pay cut in half, pales in comparison so what I’d be raking in this time of year.. This is unum were talking about and I have seen a lot of unsavory comments about them.

Attorney Stephen Jessup:

Michael, it is not too common to see a request for any type of examination within 3 months of a claim and requests for same are typically setting the ground work for a potential denial of benefits. Please feel free to contact our office to discuss your claim further.

Staci:

My husband had a functional capacity evaluation done because he was denied his disability benefits by a private insurance company. His family physician recommended it. The therapist indicated in his report that he gave maximal effort and had severe limitations. He can only sit for 10 minutes before he needs to lie down. The therapist even advised not to return to day 2 of testing. Will this help in approving his disability claim for long term benefits? And if it should be denied again, would we have a leg to stand on legally?

Attorney Stephen Jessup:

Staci, from what you have indicated the FCE should be a very useful piece of information in support of your husband’s disability appeal. I would caution you that some carriers only allow for one level of appeal so this could be your only chance to document the file as much as possible. Please feel free to contact our office if you’d like to discuss your husband’s claim further.

Nancy:

I am a nurse and had a knee replacement then had to have a revision. After receiving LTD for 24 months, Cigna discontinued my benefits stating I can do light or sedentary work. My surgeon and PCP both have documented that I cannot return to work based on me only being able to sit, stand and walk for 30 minutes at a time, medications for pain, anxiety, migraines, etc. and other medical conditions. PCP decided to send me for FCE and it came back sedentary-light based on Occupational guidelines. OT only spent 1.5-2.0 hours evaluating me. Can this ruin my appeal with Cigna since my doctor’s still agree that I cannot go back to work and have documented it in their notes? My knee is swollen and has never gone down and I am in chronic pain. I fear having volunteered for the FCE may have caused more harm than good. Also, can this hurt me with my SSDI that I am receiving?

Amy:

I had a fce through my ltd carrier. I was even done using ergonomic software so it isn’t biased. The report states that I am unable to perform any level of work. I just got a call stating they did a meical investigation and they deemed me able to do sedentary work. How is this possible?

Attorney Stephen Jessup:

Nancy, I would not suggest you submit the FCE as part of your appeal as Cigna will certainly use it as evidence to support their position as to your ability to work. You will need your doctors to provide strong statements in support of disability to overcome Cigna’s already set opinion. The SSA will likely not be aware of the FCE, so I don’t believe there is a large concern there.

Attorney Stephen Jessup:

Amy, unfortunately, I wouldn’t have an answer for you. When you do receive the denial letter please feel free to contact our office to discuss. You will have rights to administrative appeal, and there has to be something in their medical review or within the FCE results that they are using to distance themselves from the decision.

Nancy:

I agree with you about the FCE and CIGNA, but my PCP has it documented in all in her notes about sending me for the FCE. I haven’t been back to her yet to go over the results but now I feel doomed. I have days like today that I can barely go because of the pain and stiffness. Will the documentation from my Ortho surgeon and PCP help override the OT evaluation? How can a 2 hour evaluation carry so much weight on a LTD decision?

Attorney Stephen Jessup:

Nancy, although a FCE is not exact science it could be used by Cigna to support its opinions as to functional abilities, regardless of what your doctors say.

Hankster:

If I am currently on SSDI and receiving LTD from Metlife, they recently called my Dr. and asked him for an FCE, so he referred me out to an OT. Seems they are trying to gather the evidence they need to deny my LTD benefits. What if I refuse to go see the OT and do an FCE? Does being approved by SSDI excuse me from having to submit to a FCE?

Attorney Stephen Jessup:

Hankster, if MetLife is inquiring about an FCE it is reasonable to assume that they are questioning whether you have restrictions and limitations that would prevent you from working. In that case, the FCE could be useful to your claim. However, unless they request you undergo an examination at their demand- meaning they send you for it with someone of their choosing – then no, you technically you do not have to go. Being on SSDI would not excuse you if MetLife sends you to a FCE or independent medical examination.

Sandra F.:

I had an fce on july 2017 and have been off work with injury since june 2016. Doctor released me on september 2017, did not give me an mmi. He said the results were unreliable effort and he did not feel comfortable with giving me permanent impairment rating which is indicative and actual abilities could be higher than that demonstrated during the examination. The physical therapists classified me of secdentary work and the doctor gave me allot of resrictions.

Attorney Stephen Jessup:

Sandra, was the FCE performed for purposes of a disability insurance claim?

Faye:

I went to the Doctor and he said that my FCE states that I am a medium and my job is not that hard to perform. So they’re sending me back to work. The doctor said even though your in pain and feel like you can’t go back. Unfortunately the test do test for pain. I can’t sit or stand for a long time. It hurts when I walk. I want to try for disability but will the FCE results hurt mr?

Attorney Stephen Jessup:

Faye, yes, as will your doctor’s opinion that you can work even more so.

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