In the course of many types of disability insurance claims, insurance companies have increasingly sought to have claimants undergo dangerous, often unreliable testing, known as a Functional Capacity Evaluation (“FCE”). We have seen FCE’s requested in claims for orthopedic impairments, as well for many with Chronic Fatigue Syndrome or Fibromyalgia.
An FCE is a series of tests, often of strength, flexibility, endurance, pain, cardiovascular fitness, materials handling (lifting ability), coordination, static posturing, repetitive movements and other tests. These types of activities can potentially cause long term disability claimants to suffer severe aggravations of their conditions and is potentially extremely dangerous to their health.
At Frankel & Newfield, P.C., it is our position that an FCE is both dangerous and inherently unreliable in evaluating many claimants’ functional limitations. In fact, in the Journal Physical Therapy, volume 78, number 8, August 1998, an extensive article was published concerning FCEs. In this leading article, the authors concluded that there are significant safety issues regarding FCEs. They note that injury from this testing can clearly occur because the patient is being asked to perform physical tasks in order to demonstrate maximal effort. The only way that exacerbation of injury and additional injury could be avoided is if a therapist were able to note an exterior visual sign that there was unsafe performance of a particular procedure.
However the authors conclude there should be criteria available for determining when maximal effort has been put forth and when to intervene. To date, however, no such criteria exist. They also note that intervention by the therapist decreases the validity and reliability of the tests. Thus, there is a built-in incentive for the therapist to not intervene, thereby placing the patient at significant risk of harm. The authors conclude that currently there is no infallible method for determining a safe stopping point during the conduct of an FCE. Rather, as seen time and again in our review of claimants’ FCE results, a claimant forced to stop due to health risks will be accused of “submaximal effort”, and thus be considered to have malingered.
Moreover, the above referenced article contains innumerable reasons why FCE’s lack proper reliability. Those reasons include lack of research, lack of protocol, lack of uniform criteria, lack of standardization, lack of an ability to project what a patient could perform during an 8-hour work day, significant safety deficiencies, and nearly no peer-reviewed journal articles regarding reliability. The article details these numerous deficiencies, as well as many others. For example, if a patient is unable to participate in various aspects of the FCE, there is no reliable and valid method of determining, by any research whatsoever, whether the patient’s lack of participation is due to the experience of pain or inability. The tester could unilaterally conclude, without any valid or reliable basis, that the patient is not putting forth his maximal effort.
In addition to the article published in Physical Therapy, an article published at the National Social Security Disability Law Conference by Deborah Lechner, PT, MS, David Roth, PhD., and Karin Straaton, M.D., clearly corroborates the conclusions from the article in Physical Therapy. The article was also published in Work 1991; 1:37-47. The authors conclude that “. . . reliability of these tests needs to be established before claims of validity can be accepted.” The Lechner Article also makes clear that there is no empirical evidence that can support the many assumptions being used regarding the amount of effort expended by the patient during the testing. Thus, any conclusions of the testers regarding secondary gain and submaximal effort are completely useless. The authors conclude that all of the current FCE’s currently available ” . . . are lacking the critical components of a well designed test, specifically reliability and validity testing. Since reliability and validity are the two most important features of a well designed FCE, little improvement over pre-existing informal testing can be assumed.”
Therefore, the lesson to be learned is to ensure that from a contractual standpoint, a Long Term Disability Clamant’s policy or plan obligates them to undergo such an evaluation before considering subjecting oneself to the dangers of FCE’s. Generally, long term disability policies and plans require a medical exam and not a FCE. A medical exam is something that a medical doctor performs upon a claimant. An FCE is quite different, and claimant’s should exercise caution and be vigilant in protecting their rights if an FCE is requested.