Using a Functional Capacity Evaluation to Support Your ERISA Disability Claim

When you find yourself unable to perform your job duties, it can be a terrifying situation. You may be struggling with medical conditions and an increased need for time off. You may be worried about losing your job. However, most private employers must provide you with time off if you are suffering from a medical condition that renders you disabled. Even if you have disability insurance through your employer, some of your financial needs may not be met during that time.  It can also be challenging to prove to the insurance company that your conditions are so severe that you cannot perform relevant job duties and qualify for disability benefits. If you are physically disabled by pain or any other anatomical problem,  a functional capacity evaluation (FCE) may be the best way to prove your disability. 

What is an ERISA Disability Claim?

If you have disability insurance through your private employer, that claim likely falls under the Employee Retirement Income Security Act of 1974 (ERISA). Although there are a few exceptions, most employer-sponsored disability plans, both long and short-term, must comply with ERISA. ERISA protects plan participants by mandating that insurance companies treat all participants fairly and provide necessary information to file appeal claims. Your insurance provider should give you all the necessary information to file a disability claim, and they should work with you to submit appropriate evidence. However, it can still be challenging to determine exactly what your insurer needs to approve your claim. 

What is a Functional Capacity Evaluation?

Simply put, a functional capacity evaluation is the “gold standard” for objectively measuring and proving physical work restrictions (ie., how long can you sit/stand/walk?; how much can you lift and how often?; how much can you type or use a computer).  Depending on who is performing the test, an FCE can take anywhere from two to four hours, and some providers test two days in a row to measure the after-effects of the first day’s activities. 

An FCE helps in the assessment of the level of work you can do.  In a disability setting insurers routinely refer to the “job demand classifications” defined by the United States Department of Labor  – heavy, medium, light, or sedentary, which is the lowest level of work recognized in disability law.  If an FCE confirms a patient cannot tolerate full-time, sedentary work, generally speaking that person should qualify for disability benefits under almost every ERISA plan. 

The FCE is only as good as the provider performing it.  FCE’s are normally conducted by physical therapists with additional, specialized training.  The best FCE providers use specific protocols, including embedded validity screens, that have been scientifically tested and peer-reviewed to establish that the FCE test protocol accurately measures what it purports to measure.  Other providers use protocols that barely qualify as science, if they do so at all. 

Some FCE providers exist to serve insurance companies, who are their sole source of referrals and income. Since insurance companies save money when people are “released to work,”  we have seen insurance-oriented FCE providers who rarely, if ever, support a disability – even where the patient has serious problems and a high level of credibility.  One thing an experienced disability attorney can do is make sure you avoid those practitioners. 

During the FCE, you will be asked to attempt a series of physical tasks for as long as you can handle.  The best FCE protocols have built-in measures to detect exaggeration, inconsistent effort and signs of malingering.  For legitimately disabled people, this is good and desirable. When you pass all these tests and measures and still come out disabled, the FCE reinforces the credibility of everything you are and have been saying about your disabling symptoms. 

At minimum, a typical FCE will evaluate your abilities in the following areas:

• Lifting
• Pushing and pulling
• Sitting and standing
• Walking
• Crouching and stooping
• Grasping and manipulating
• Reaching
• Following directions

Some providers are able to further customize to simulate the parts of your job that are most difficult given your medical condition.

Part of the FCE process involves the provider observing your posture and the mechanics of your body movements.  Often these break down as tasks are repeated.  The provider will also note your escalating symptoms as you describe them, often with a heart rate monitor that notes escalating heart rates as the pain levels increase. When your increasing pain causes your heart rate to accelerate, we know you are in legitimate pain because this is something that cannot be faked. Medical examinations do not measure dynamic heart rates in this way. So, the FCE is more detailed than the typical medical examination and contains objective measures that are uniquely valuable in evaluating and proving a disability.

Why is an FCE Better Than Other Forms of Evidence?

First and foremost, many insurance companies will accept the results of an FCE for what they are – the best proof of a physical disability that modern science has to offer.  It is a great way to have your claim paid without an expensive, prolonged legal dispute. However, some insurers will push back even against this objective, scientific testing, hiring doctors to invent reasons to ignore the results.  Sadly, it is all too easy for insurers to find this kind of doctor.  There is a cottage industry of them waiting to serve.

Even in the event of a dispute, having an FCE in your corner puts you in an immeasurably better position. Federal courts reviewing disability claims have often recognized that the FCE is the “gold standard” for establishing work restrictions. “A functional capacity evaluation is generally a reliable and objective method of gauging the extent one can complete work-related tasks.” Shaw v. AT & T Umbrella Ben. Plan No. 1, 795 F.3d 538, 548 (6th Cir. 2015) (citation and internal quotation marks omitted); See also, Brooking v. Hartford Life & Accident Ins. Co., 167 F.App’x 544, 549 (6th Cir. 2006) (describing a functional capacity evaluation as “objective evidence” of the claimant’s back pain). The FCE has further been described by the federal courts as the “best means of assessing an individual’s functional level.” Townsend v. Delta Family-Care Disability & Survivorship Plan, 295 F. Appx 971, 977-78 (11th Cir. 2008) (collecting cases) (quoting Fick v. Metro. Life Ins. Co., 347 F. Supp. 2d 1271, 1280 (S.D. Fla. 2004).

In Madison v. Greater Georgia Life, Civil Case No. 1:15-cv-03413-SCJ (NDGA 2016), a recent case handled by our law firm, Judge Jones of the Northern District of Georgia confirmed the value of FCEs as the gold standard for assessing functionality,  writing that a formal functional capacity evaluation, when properly conducted, can be more useful and more reliable than even an orthopedic examination in establishing detailed work restrictions. This was in part because the FCE, unlike an orthopedic examination, “involved occupational abilities tests that measured Madison’s capacity for activities that resembled his job’s.”  Id.  The Court noted that an FCE can be more valuable than an orthopedic examination:

And physical therapists like Navarro are licensed, trained professionals well suited to assessing whether a given injury impacts functional ability. Surgeons, by contrast, better evaluate whether a person has an injury and whether surgical intervention could aid recovery. For example, neurosurgeons may operate on brain aneurysms, but therapists (occupational and physical) work with patients to recover their functionality after surgery.

Id at 32.  The FCE was validated and reliable because it was “consistent with multiple doctor’s clinical evidence (i.e. range of motion, atrophy,” etc.) and because of the several effort verification measures passed by the patient.  The Court found the insurer’s decision to ignore the FCE without justification arbitrary and capricious, and benefits were awarded as a matter of law.

The bottom line is that courts do strongly favor FCEs.  So, even if your insurance company wants to fight the results, it is generally in a weak position being on the opposite side of an FCE.

Among other things, the FCE will also help your doctor, providing a firm, objective foundation for his/her opinions on your work restrictions. In the absence of an FCE, doctors are making subjective estimates of what you can and cannot physically do.  Some treating physicians are not comfortable making these assessments.  Some refuse to do so outright. In our experience, a patient providing the results of a valid FCE helps the treating physician feel more comfortable advocating for you.

How to Prepare for an FCE or Other Examinations

Before undergoing an FCE, you can do the following things to prepare:

• Keep a Diary – Although your subjective descriptions of your symptoms do not hold weight with the insurance company, your doctor needs to know how your conditions are affecting every area of your life. Your doctor or therapist will objectively determine whether the things you claim make sense according to other findings. In your diary, document your pain on a scale of 0 to 10, all symptoms you experience, and how every area of your life is affected by your inability to function. 
• Make a List of Prescriptions and Treatments – Any doctor or therapist performing an FCE needs to know your complete medical history. Although your examiner should already know your medical history, an independent doctor may not. They should receive your medical records in advance of your exam; however, you should also jot down a brief history of medications and treatments you’ve received as well as how they have impacted your conditions. This will allow the examiner to have a full picture of your medical history and how it has affected you personally.
• Understand Your Conditions – Your doctor or therapist will ask you many questions regarding your medical conditions, and it is best if you fully understand what he or she is talking about before answering. If your examiner asks you if you’ve experienced episodes of syncope, you need to know that means “fainting.” Do not be afraid to research your own conditions or ask for additional information prior to your FCE exam. This will allow you to better understand the questions your doctor asks during the exam. 

Our Atlanta ERISA Disability Attorney Can Help

Part of the value we try to bring for our clients at Robinson Warncke is recommending testing that is appropriate for your medical condition, that will scientifically confirm and measure your disabling symptoms and your functional restrictions.  Your doctor does not need an FCE to make a diagnosis or to decide know which procedures or medications to recommend for you. In other words, and FCE is not a medical test. This is solely about proving how your medical condition impairs your ability to function, ie. your disability.  

Being a legal rather than a medical test, instead of leaving this to your doctor (who probably knows very little about what evidence is convincing to disability insurers and federal judges),it is better to have this part of the claim process managed by attorneys who specialize in disability claims.  We can help determine whether an FCE is likely to be valuable, can make sure you get to the best providers, help you prepare, and then help your doctor connect the FCE results with your in-office medical findings and test results.

Filing an ERISA disability claim can be complicated. You must comply with all of the requirements and deadlines of your insurance company, which is working to pay you as little as possible. In order to expedite the process, you should contact an experienced Atlanta ERISA disability attorney to fight for you.