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Beware When Disability Insurance Company Asks for Functional Capacity Evaluation (FCE) Testing

Disability Denial Upheld When Insurer Relied on Functional Capacity Evaluation (FCE)

A federal judge in Florida recently upheld a decision by Aetna Life Insurance Company to deny disability benefits to an employee making a claim under their employer’s ERISA Group Disability plan where Aetna relied heavily on Functional Capacity testing that concluded the claimant could do sedentary (sitting) jobs.   Functional Capacity Evaluations – often called FCE – are used to evaluate how much a person can sit, stand, lift, push, pull, bend, twist, climb, etc.  these tests are performed by physical therapists, and when done by an honest vendor with testing that shows how limited someone is, an FCE can be very helpful to a person who is making a Disability Insurance claim.  But what happens when your Long Term Disability Insurance Company sends you to a physical therapist that they use all the time….one who is no so honest..or even one where the fix is in before you even walk in the door.  People often think their LTD Insurance Company will treat them fairly, but our experience has shown that insurers use vendors that offer predictable results, and their reports are often death to a Long Term Disability claim.

FCE Testing Is Considered Reliable By Courts

FCE testing is widely viewed as being useful in Disability claims.  Disability Insurers often use FCE testing to get an opinion whether someone can do sedentary work, that is a sitting job (For more on sedentary work, see this article: Disability Denied? They Say You Can Do Sedentary Work…What is Sedentary Work?).  In Ness v. Aetna Life Insurance Company, a case decided in June 2017, the Judge wrote:

Plaintiff’s contention that a physical therapist’s FCE report is not reliable evidence in an ERISA disability case or that it is somehow inferior to a physician’s opinion is without merit. Physical therapists are in fact “licensed health care professionals” who “help patients reduce pain and improve or restore mobility.” Ortega–Candelaria v. Johnson & Johnson, 755 F.3d 13, 24 (1st Cir. 2014) (citation omitted). In regard to the validity profile 6 noting poor efforts by Ness, the record shows that Ness passed 22 of the 49 validity criteria, or 45 percent. See A–2400.  Thus, Plaintiff’s understanding of the findings is mistaken.

Furthermore, the Eleventh Circuit has specifically recognized that ERISA administrators tasked with deciding disability claims “routinely rely on FCEs,” which are “routinely conducted by physical therapists.”  Townsend v. Delta Family–Care Disab. and Surv. Plan, 295 Fed.Appx. 971, 977 (11th Cir. 2008) (affirming summary judgment for administrator that relied on FCE in denying benefits); Lake v. Hartford Life and Acc. Ins. Co., 320 F.Supp.2d 1240, 1249 (M.D. Fla. 2004) (noting that “the best means of assessing an individual’s functional level” is a FCE.). Moreover, since the FCE showed that Ness had the ability to perform sedentary work capacity, Aetna’s decision to terminate benefits was not wrong. See Moeller v. Guardian Life Ins. Co., No. 5:10-cv-457, 2011 WL 7981954, *8 (M.D. Fla. Dec. 16, 2011) (finding that the FCE which showed Plaintiff could perform sedentary to light work supports the administrator’s determination that plaintiff was not totally disabled from any gainful work.).

It is important to recognize that the Judge considered it entirely reasonable for the insurance company to rely upon a test where the injured person only passed 45% of the validity criteria.  That means the Judge considered it perfectly reasonable for a test that was 55% unreliable to be something Aetna could rely upon.  Even when the test was over half unreliable, the court still considered it reasonable for Aetna to deny the claim.

Takeway:  Get Legal Advice When Your LTD Insurance Company Wants to Get an FCE

While we recommend getting FCE testing from a reliable vendor when a person makes a disability insurance claim.  Our experience has been that Long Term Disability Insurance Companies often use vendors that are less than objective.  Put another way, the Disability Insurance Companies often use frequent-flyer companies that do these tests over and over for their insurance company clients.  When an LTD Insurance Company contacts you to send you out for an FCE, you should immediately contact a Disability Attorney to find out what you need to do to avoid being cut off.

CASE:  Ness v. Aetna Life Insurance Company, ___ F.Supp.3d ___, 2017 WL 2800521 (M.D. Fla. Jun. 15, 2017).

 

If your disability insurance company wants you to attend an FCE or you are considering going to an FCE yourself, call one of our experienced ERISA Disability Insurance Attorneys at (866) 282-5260 or contact us online.

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