Ask the Chronic Fatigue Syndrome & Myalgic Encephalomyelitis Disability Attorney
The Functional Capacity Evaluation (FCE) and Your Disability Insurance Benefits
By Jason A. Newfield and Justin C. Frankel, Attorneys at Law
People with Fibromyalgia and Chronic Fatigue Syndrome (CFS) face many challenges when pursuing their claim for long term disability insurance benefits, and the Functional Capacity Evaluation (FCE) is one of them. The Functional Capacity Evaluation is a bad test for anyone who is disabled – but for people suffering from Fibromyalgia or CFS, it’s often a complete disaster.
Disability insurance companies have terminated benefits based on the results of the FCE, so it is very important to treat a request to undergo this test very carefully. Unlike an Independent Medical Examination (IME), which is a requirement of almost all disability insurance policies, it is possible that your policy may not specifically require that you undergo an FCE. Carefully review your policy. You may wish to have an experienced disability attorney help guide you in this process, as the policy language is not always easily understood. And if the FCE is required, it must be given in a facility that is not overly far from your home and does not require an overly burdensome trip. Insurers often conduct surveillance in tandem with a scheduled FCE, knowing that they will see some level of activity, and eager to capture it on film.
The FCE is a series of tests of strength and endurance, and are purportedly utilized to measure the ability of an individual to perform specific tasks which are then translated into work capacity. The test also includes a behavioral component that seeks to measure “symptom magnification,” a clinical team that basically means that the person is malingering.
In a perfect world, an FCE would also measure the overwhelming fatigue, pain and the “brain fog” that is a common part of daily living for Fibro and/or CFS sufferers.
There is mounting evidence that the FCE is not a valid test for Fibro and/or CFS. The ability of a person to move a piece of equipment or perform a series of physical tasks may be applicable to a person with an orthopedic injury, but even those situations have been successfully argued in court, as people are often asked to perform tasks at the edge of their abilities and have been injured during the FCE. We believe that the tests are completely irrelevant and potentially dangerous to Fibro and/or CFS patients, for a number of reasons.
Most of us have spent our lives trying to do well on tests – tests in school, tests to get our driver’s license, etc. Sometimes we push ourselves farther than we should. That’s why so many weekend athletes often end up in doctor’s offices on Mondays.
For many Fibro and/or CFS patient, that extra push is long gone. The cumulative impact of chronic pain and fatigue does not permit any extra effort. Sometimes just getting out of bed in the morning is exhausting. And when patients are having a good day and decide that they will attempt to complete these tasks, they often pay the price afterwards, with flare-ups of symptoms that may last for days, weeks or longer. This information is not included in the FCE results, but it should be. The FCE delivers a result that an insurer will utilize to deny or terminate a claim, as a claimant will either push themselves beyond safe capacity, and suffer, while the FCE reports strong functional ability, or the claimant will self-limit their actions, due to pain or fatigue, and the insurer will utilize this as evidence of poor effort. Either way, it has the potential to support an adverse claim determination.
It may be a generalization, but a healthy person whose life revolves around fitness and training and has no experience, clinical or otherwise, with Fibromyalgia and/or CFS is not likely to understand the difficulty presented by these seemingly simple tasks. More often than not, their interpretation will be that the person is deliberately trying to exert as little effort as possible.
We recommend that our clients do not go to their FCE by themselves. Bring a trusted family member or friend who can be relied upon to take careful notes and observe the entire process. After the examination is done, as soon as you can, makes note of how long the test was, what you were asked to do, and make a clear note if there was anything you were asked to do that caused pain. Record your symptoms daily for about a month after the test to track any flare-ups. If you have a severe flare up, contact your primary treating physician so that the flare up is properly documented. This information may be useful for any appeals and/or litigation if your benefits are being challenged.
Justin C. Frankel and Jason A. Newfield
National Disability Insurance Law Firm Frankel & Newfield, PC
on being named
2014 SUPER LAWYERS
GARDEN CITY, NY – Sept 23 - Both partners Justin C. Frankel and Jason A. Newfield have been selected to the New York Metro Super Lawyers list as two of the top New York metro area lawyers for 2014. Each year, no more than five percent of the lawyers in the New York metro area are selected by the research team at Super Lawyers to receive this honor. Both Frankel and Newfield were also named Super Lawyers in 2013, and Frankel was selected in 2011.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
About Frankel & Newfield
Frankel & Newfield, P.C., is a national law firm devoted to protecting the rights of individuals with disability claims and litigates cases throughout the country against insurance companies. The firm’s, www.disabilityinsurancelawyerblog.com, has been selected twice by LexisNexis as a Top Insurance Law blog. To learn more, visit www.frankelnewfield.com.
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