Our last post discussed what to expect during a functional capacity evaluation (“FCE”), as well as the intended purpose of an FCE. Though FCEs can be a useful tool for measuring your abilities, FCEs do not always provide results that are truly indicative of your ability to do your job on a regular, consistent basis. Many courts have recognized the weaknesses and limitations of FCEs in the disability insurance claim context.
Weaknesses and Limitations of FCEs
There are approximately 10 different types of FCEs, each with its own program, measurement methods, and possible evaluative outcomes. Because FCEs can be influenced by many factors, such as physical ability, beliefs, and perceptions, FCEs need to “be interpreted within the subject’s broad personal and environmental context.” Thus, the FCE “process and its administration are only as good as the examiner.”
Disability insurers often stop paying benefits based on FCE results, even when you can’t actually meet the demands of your former job duties on a consistent basis. This is due to an inherent limitation of FCE testing: the FCE can only measure your capacity to do a certain task for a limited amount of time on a certain day. For instance, you may be able to push and pull ten pounds for a few minutes during the FCE, but that doesn’t mean you can do the same task all day, every day.
Another important limitation of FCE testing is how effort is measured. The FCE examiner normally monitors the subject’s heart rate to determine if he or she is putting forth full effort. If your heart rate isn’t high enough, the examiner will say you didn’t try your hardest, so you can probably do more than you demonstrated during the testing. However, there are factors that affect your effort level that can’t be measured by your heart rate alone. For example, heart rate monitoring doesn’t measure the impact of migraine headaches, kidney failure, or other non-exertional limitations (such as interference with attention and concentration due to pain and fatigue).
Court Reactions to FCEs
Recognizing the limitations of FCEs, courts have been critical of extrapolating FCE results into evidence of capacity for full time work. In Stup v. Unum Life Insurance Company of America, the court held that a two and a half hour FCE could not predict functionality over an eight hour day or work week for an insured suffering from lupus erythematosus and fibromyalgia. The court also held that the insurance company could not rely solely upon the result of the FCE to deny the insured’s claim when all other evidence of record proved the insured was in fact disabled.
Similarly, in Brown v. Continental Casualty Company, the court held that the FCE was a “one time test . . . [that] cannot hope to present a true picture of an illness characterized by viable symptoms.”
In Balinger v. Eaton Corporation, the court held that the result of a two hour FCE completed by a physical therapist did not outweigh the opinions of the insured’s two medical doctors who treated the patient for more than five years.
Finally, in Michael v. American International Group, Inc., the court held that an FCE could “neither prove nor disprove claims of disabling pain” because FCE findings are based on the insured’s “ability to exert force, and not based on any measure or determination of pain.”
What Can You Do?
What can you do to ensure that your FCE doesn’t unfairly jeopardize your claim for disability insurance benefits? During the FCE, let the physical therapist know when you experience pain during the evaluation’s activities and explain the intensity and location of the pain. You should also tell the physical therapist if the pain limits you from doing certain tasks. For example, if your examiner asks you to grip an object as hard as you can, but you can’t physically close your hand due to scar tissue, explain that to the examiner.
After the FCE, be aware of your pain levels as they relate to the activities you performed during the evaluation. If your pain or symptoms change, increase, or worsen post-evaluation, report these facts to your examiner (if he or she is present when the symptoms begin or worsen) and/or your own doctor immediately. Neither you nor your disability claim will benefit from ignoring the pain or “toughing it out” until the pain goes away.
Make sure your treating doctors document your post-FCE pain levels and symptoms in your medical records. If your insurer later attempts to deny your disability benefits based on the physical therapist’s findings in the FCE, your post-evaluation symptoms and pain levels will be critical evidence to support your claim.
Once you receive the FCE report, your attorney can help you carefully review it to determine what type of evaluation was performed, what methodology and criteria for assessment were used, and if the evaluation accurately measured what it sought to measure. A lawyer can also help determine if the therapist deviated from the outlined procedures, if the therapist demonstrated bias, if the evaluation is reliable, and if the evaluation reflects your work capacity as it relates to your work demands.
 See Joseph J. Chen, M.D., Functional Capacity Evaluation & Disability, 27 Iowa Orthop J. 121, 122 (2007), available at http://www.uiortho.com/images/stories/ioj/2007/downloadall.pdf.
 Stup v. Unum Life Insur. Co. of America, 390 F. 3d 301 (4th Cir. 2004).
 Id. at 309.
 Id. at 311.
 Brown v. Continental Casualty Co., 348 F. Supp. 2d 358 (E.D. Pa. 2004).
 Id. at 367.
 Ballinger v. Eaton Corp., 212 F. Supp. 2d 1086 (S.D. Iowa 2002).
 Id. at 1094.
 Michael v. Am. Int’l Grp., Inc., 2008 WL 4279582 (E.D. Mo. 2008).
 Id. at *18-19.