In the field of disability insurance, a trend that has seen a tremendous surge has been the insurance companies’ utilization of Functional Capacity Evaluations (“FCE’s”). This trend has caught a number of unsuspecting claimants in a web that has tangled their ability to continue receiving their disability payments.
Thankfully, some courts are beginning to see through these issues. One court recently rejected a claim termination that was based upon a “result driven” FCE. The FCE, which concluded that a claimant could perform greater than sedentary work over an eight hour day, was rejected, in large part because the examiner focused upon the purported self-limiting behavior, rather than relying upon the testing and observations for assessment of functional ability. Lowery v. UNUM Life Ins. Co.
Many insurers seek FCE’s even where the policy does not specifically permit the right to conduct such an evaluation. In these instances, we typically aggressively challenge the insurers’ right to the evaluation, based upon policy language, as well as legal challenges concerning the reliability of the test results, and medical challenges to the safety of such evaluations.
If your insurer is attempting to compel you to attend an FCE, we strongly urge you to engage counsel to protect your rights.