Long Term Disability Attorney Practice Tips: Functional Capacity Examinations (FCEs)

Your client's disability insurance company schedules a Functional Capacity Examination (FCE); what do you do?

This is often a judgment call. On the one hand, an FCE almost always results in a bad result for your client. If your client is able to perform the tasks assigned, the examiner will pronounce that your client is not disabled. If your client is not able to perform the tasks, the examiner will pronounce that your client gave sub-maximal effort. On the other hand, if your client refuses to go to the FCE, the insurer will either terminate your client's benefits for failure to cooperate or will schedule an independent medical examination (IME). An IME is often harder to discredit later than the FCE. FCE's can often be discredited because: the protocol that they apply has not been subjected to peer review; asks claimants to perform tasks that are completely unrelated to their occupations; and are just downright unscientific. It is a great leap in logic to project from the ability to perform certain discrete physical tasks on one or two particular days to the ability to perform a full time occupation (that involves cognitive tasks and time pressures) on a consistent basis day after day.

If a decision is made to attempt to cancel the FCE, how do you approach the insurance company?

There are two general strategies. First, consult the policy. Most LTD policies give the insurer the authority to request a physical examination by a physician, but make no mention of an FCE. You could argue that the insurer has no contractual right to request an FCE; an FCE is not an "examination" and it is generally not conducted by a physician. Second, consult with the claimant's treating physician. The physical tasks required by the FCE may be potentially harmful to your client depending on the nature of his or her disability. If the tasks are harmful, get a short note from the treating physician explaining why the tasks are potentially harmful to your client. It is has been our experience that the insurer will almost always cancel an FCE if you provide it with proof of potential harm.

If a decision is made to permit your client to attend the FCE, what do you do?

If possible, arrange to either have someone videotape the FCE or to have a nurse be present who will take detailed notes of the FCE. This will not only help to keep the examiner honest, but could later be used to attack the conclusions of the examiner.