Medical Examination vs. Functional Capacity Evaluation
Functional Capacity Evaluations are frequently used in the evaluation of a disability claim. An FCE tests a claimant’s ability to perform a series of tasks, which would simulate the claimant’s usual and customary job duties, to determine the extent to which the claimant is able to perform these tasks on a regular basis. It consists of a series of tasks designed to estimate the physical limitations of the claimant and to determine whether the claimant might be malingering.
The evaluation can take several hours, or it could take two or three days. A well-conducted FCE provides objective clinical evidence on whether the claimant is physically capable of performing the usual and customary duties of his occupation. It is also designed to determine whether the claimant is putting forth his maximum effort in performing the tasks of the exam, and thus can provide evidence on whether the claimant is exaggerating his symptoms.
Is A Claimant Required to Attend an FCE?
Insurance contracts typically provide an insurer the right to seek a medical examination of a person claiming entitlement to long term disability benefits. A typical contract will often read as follows: “As often as is reasonable, we have the right to have the insured examined by a physician of our choice.”
Many insurers have read this language broadly in seeking to have claimants undergo Functional Capacity Evaluations. These FCE’s are dramatically different from a medical examination, in that they typically force a claimant to undertake rigorous physical activity for a sustained period of time, engaging in functions such as pushing, pulling, climbing, bending, reaching and other activities. Often, this type of testing is performed by a physical therapist, rather than a doctor. A claimant who undergoes such testing will likely find themselves suffering substantial exacerbations of their medical condition following this testing.
The lawyers of MyLTDbenefits.com take issue with a number of aspects of an insurers’ FCE request. First, many insurance contracts do not specifically require a claimant to undergo an FCE. Where the contract was written by the insurer, and is vague or ambiguous, we can make an argument that the provision does not properly require such testing, and is inappropriate. In one case, the Court looked at the contractual terms and stated that “[N]othing in the Plan defines an FCE, and nothing in the Plan permits Hartford to require an FCE.”
Other FCE Concerns
Other concerns raised by MyLTDbenefits.com about FCEs include the inherent lack of safety and the lack of reliability to the results. As noted above, many FCEs require claimants to undertake vigorous physical tasks, which lead to the exacerbation of their conditions. The FCE provider is not the treating doctor and is not concerned about post-testing impact upon the claimant. If our client is injured in an FCE, the insurer will not readily accept liability for any injuries, and liability may not even be able to be imposed upon the provider. Regarding the reliability of the results, the insurer often attempts to use these test results to extrapolate our client’s full time functionality, even though the FCE was short in duration, and ignoring the post-testing impact upon our client. Finally, the FCE may not be proper if by design it will not yield probative results. As one court noted, “We further recognize that tests of strength such as a [FCE] can neither prove nor disprove claims of disabling pain, nor do they necessarily present a true picture in cases involving fibromyalgia where the symptoms are known to wax and wane, thereby causing test results potentially to be unrealistic measures of a person’s ability to work on a regular, long-term basis.”
Witness and Videotaping Issues
Often, claimants are counseled to attend either an IME or FCE with a witness and/or to videotape the examination/evaluation. The logic behind this approach is to help to ensure that the process has integrity, so that the true results of any examination or evaluation are accurately depicted. However, many insurers argue that witnesses and videotaping are not permitted.
As reported by the New York Times recently, “Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker’s back. ‘Mild spasm bilaterally,’ he said softly. He pressed his fingers gingerly against the side of the man’s neck. ‘The left cervical is tender,’ he said, ‘even to light palpation.'” As he moved about a scuffed Brooklyn office, he called out test results indicative of an injured man. His words were captured on videotape.
Yet the report Dr. Samuels later submitted cleared the claimant for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.
“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby”, he told the New York Times.
A New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.
“You go in and sit there for a few minutes – and out comes a six-page detailed exam that he never did,” said Dr. Stephen M. Levin, co-director of the occupational and environmental medicine unit at Mount Sinai Medical Center, who has been picked as the interim medical director at the compensation board. “There are some noble things you can do in medicine without treating. This ain’t one of them.”
Many independent examiners are older, semiretired physicians who no longer treat patients, and claimants and lawyers have asserted that the memories and judgments of some of the doctors have at times been impaired by their age and frailties. The examiners do not need special training, only to have a state license and to be authorized in a specialty.
“Basically if you haven’t murdered anyone and you have a medical license, you get certified,” said Dr. Alan Zimmerman, 75, an orthopedic surgeon who does the exams. “It’s clearly a nice way to semiretire.”
Some examiners see dozens of disability claimants a day. Often the appointments are booked by brokers who help insurance companies find doctors. Some brokers are not registered with the state, as required, but there has been little enforcement of the rules.
Doctor vs. Doctor
Dr. Robert E. Bonner, the medical director of the Hartford, an insurance company, said it was clear that the landscape had polarized. “Physicians regrettably have moved away from being neutral observers,” he said. “They’ve moved toward one camp or the other.” MyLTDbenefits.com lawyers understand how critical it is to establish evidence of your specific disabling conditions through sound, accurate, and extensive IMEs and FCEs.
Shu-Ying Xu, 66, a home health aide, told the New York Times she met with an independent examiner so he could review the back, neck and leg injuries she suffered when she tried to prevent a patient from falling. She said the exam took two minutes and was so quick that the doctor, Wayne Kerness, an orthopedic surgeon, did not ask her anything. As a result, she said, when the doctor filed his report he said she spoke English. She does not. He said she took no medications. She said she took nine. He said her disability was mild and she could resume work. She said that she was in debilitating pain and that the Social Security Administration had already concluded that by its standards, she was totally disabled. “She can’t even hold a gallon of milk,” said Peter Chang, her son. He had come along to the exam to translate. Since no questions were asked, he said he had nothing to do.
After checking his notes, Dr. Kerness said it was an error to have said that Ms. Xu spoke English. Otherwise, he stood by the report. “What can I say?” he said. “People can say whatever they want.” He added: “I have my share of people I’ve found totally disabled and even recommended treatment that has been overlooked. I think I’m pretty heterogeneous.” A judge ultimately ruled that Ms. Xu’s benefits should continue.
Currently, the best protection for a claimant is to tape an exam. But few do. Some doctors do not like it. Ms. Houlder, 63, who hurt her ankle, videotaped her exam by Dr. M. Pierre Rafiy, a 77-year-old orthopedic surgeon. In the videotape, Dr. Rafiy grasps Ms. Houlder’s right ankle and says it is swollen. In the written report, he stated that there was no swelling and no disability and that she could return to work. When subsequently deposed, he backtracked, saying it had been a secretary’s mistake to say no disability. He did not correct anything else.
Examiners or Advocates?
Dr. Samuels, 79, with a radiant smile and a burst of snowy hair, stopped doing surgery years ago, reported the New York Times. Until recently he commonly filled his days performing insurance exams on workers, sometimes as many as 50 in an afternoon, he said. “You obviously can’t spend a lot of time with that volume pushing up your back,” he said. “You have to assume there are going to be errors. Look, there are a lot of holes in this thing.”
At times, evidence shows, Dr. Samuels’s official reports were quite different from what he appeared to find during an exam. Consider his 2007 examination of Johanne Aumoithe, a pastry chef who said she had hurt her arm and neck. On a videotape that Ms. Aumoithe recorded on her cellphone, Dr. Samuels comments that she had limited range of motion. His written report concluded the opposite.
Asked about the discrepancy in an interview, Dr. Samuels chuckled and said he could not even recall the people he saw yesterday. The way he worked, he said, was to submit a checklist to a company which transformed it into a narrative. “I never write a sentence,” he said. “It’s really crazy, but that’s how it’s done.” He often inserted numbers in the checklist – say, a measure of hand strength – after the person left, rather than as he performed the tests. Was he sure they were correct? “I’m not sure of anything,” he said. “They’re just a guess in the first place.” The law requires a doctor to attest to the accuracy of a finished report before signing it, but Dr. Samuels said he rarely read them. He doubted he had read the Aumoithe report. “I just sign them,” he said.
If he seldom read them, how did he know they were correct? “I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. They want speed and volume. That’s the name of the game.”
Are there Valid FCEs?
A true FCE is one that can properly test with reliable data, rather than subjective reporting, which insurers contend is the “objective evidence”. At MyLTDbenefits.com we typically arrange for our client to undergo a one day test with an examination by our client’s treating doctor the next day, to make a record of physical setbacks and limitations caused by the client’s exertion during the testing. This is particularly important for our clients who suffer from CFS, fibromyalgia, lymes disease, MS, certain back conditions, and other pain syndromes.
Contact the long term disability experts at MyLTDbenefits.com to help you lay out a tactical approach to proving your disability through proper IMEs and FCEs, while at the same time blocking overreaching by your insurance carrier. Contact us at 1-888-843-1261.