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Prove Physical Restrictions With a Functional Capacity Evaluation

Tucker Law Group
January 9, 2017

When an insurance company use paper reviews by doctors to deny disability insurance claims, most people would think that cannot be enough. They have to have more, right?  Not when they are deciding employer group disability insurance claims.  These claims are covered by ERISA, the Employee Retirement Income Security Act.  Many courts have held that when ERISA administrators only have paper reviews, that is enough to support their decision to deny claims.  Even though courts have held that paper reviews can be enough, a disabled claimant has ways to beat the insurer’s paper reviews, but you have to be proactive and do it while the claim is pending.

One way to trump an ERISA insurer’s paper review is by getting a test that documents a person’s physical limitations.  That test is called a Functional Capacity Evaluation – also called an FCE. The advantage of an FCE over an opinion from a doctor is that the FCE is an objective test.  It includes tests for malingering (or intentional faking), as well as methods to actually document and put a value on how much someone can lift, push, pull, bend, sit, stand, crouch, crawl, etc.

Why get an FCE?  If you have an ERISA disability claim, the most important reason is that the insurer almost certainly had a doctor review your file and say that you were not disabled.  This matters, because courts have held that ERISA administrators simply have to support their decisions to deny benefits with some type of reasonable evidence.  Most courts have held that a paper review by a doctor is enough….unless there is some better evidence in the file.  To win your disability insurance claim, you must have something that proves not just your diagnosis, but also that proves how you are limited and restricted.

A recent example of paper reviews winning a claim for an insurer happened in the a South Florida federal court in September 2016.  In German v. Metropolitan Life Insurance Company, a financial representative with AXA suffered from neck and back pain for several years before filing for disability benefits under his company’s disability plan.  He based his claim on a drastic reduction in his hours from around 70 hours per week down to 60 hours per week.  However, he was still working and did not offer specific proof of his disabling limitations despite his condition getting worse.  MetLife had 4 doctors review his file who concluded that he could still do full-time work.  MetLife also had a vocational rehabilitation professional evaluate the file and conclude that the claimant did not have a disability.  German lost the claim in part because he was still working full-time hours and producing revenue for AXA.  However, the fact that MetLife had 4 physicians conduct paper reviews provided reasonable evidence in the eyes of the Judge.  Those paper reviews were enough for MetLife to rely upon, and German had not submitted any medical evidence which proved that he had restrictions despite the “opinions” of the paper review doctors.

In the German case, one way to have won the claim may have been to obtain an FCE.  A functional capacity evaluation could have documented the level of restrictions that the claimant’s increasing disability was causing.  In that situation, just having an opinion from a treating physician is no better than the insurer’s paper review opinions.  They are simply opinions.  An FCE is a objective test that a disabled employee can use to beat any physician’s opinion if it shows restrictions and limitations that would be disabling.  Unfortunately, without better evidence than the disability insurance company, there is no way to prove the insurer’s paper review doctors are wrong.

CASE:  Roberts v. MetLife Ins. Co., 2016 WL 5661628 (S.D. Fla. 9/30/2016)

TAKEAWAY:   An FCE can prove your limitations and restrictions, and give you evidence to beat the opinions of the doctors hired by the disability insurance company that do nothing more than review the paper claim file and write a report.