Winning Isn't Easy: Long Term Disability ERISA Claims

Functional Capacity Evaluations & The Impact They Can Have On Your Disability Claim.

January 27, 2022 Nancy L. Cavey Season 2 Episode 41
Winning Isn't Easy: Long Term Disability ERISA Claims
Functional Capacity Evaluations & The Impact They Can Have On Your Disability Claim.
Transcript
ERISA Attorney Nancy L. Cavey:

Hey, I'm Nancy Cavey, national ERISA, and individual disability attorney. Welcome to a winning isn't easy. Before we get started today, I've gotta give you a legal disclaimer. This podcast isn't legal advice. The Florida bar association tells me that I've gotta say this. Now that I've said it, nothing is ever gonna prevent me from giving you an easy to understand overview, the disability insurance world, the games that disability carriers play and what you need to know to get the disability benefits you deserve. So off here we go today, I'm gonna be talking about functional capacity evaluations and the impact the results of an FCE can have on your disability insurance claim. There are three specific topics I'm gonna be talking of . Now . First, the answers to the eight most commonly asked questions about a disability insurance company's functional capacity evaluation. Test two. What are the five things that happened during a disability insurance company, functional capacity evaluation, and the story of an executive sous chef with osteomylitis who was wrongfully denied his long-term disability benefits by Hartford based on their functional capacity evaluation. Let's take a break for a moment before we get started with this week's episode,

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ERISA Attorney Nancy L. Cavey:

Welcome back to winning. Isn't easy. You're ready to get started. I am. I wanna talk, talk about the answers to the eight most commonly asked questions about disability insurance companies , functional capacity evaluation test. Well, when you applied for your disability insurance benefits, you probably didn't know that you have the burden to prove that you meet the policy definition of disability. There, unfortunately isn't any you in a form definition of disability, but you normally will have to prove during the first two years that you're unable to perform the material and substantial duties of your own occupation as that term is defined by your policy. Now, after two years, the standard of disability generally changes from an inability to perform your own a patient to an inability, to perform any occupation. Now, regardless of whether you're at the OC or the Antioch stage of a disability claim, your physical abilities are always at question. The disability carrier may schedule you for what's called a functional capacity evaluation, an FCE to determine how long you can sit, stand, walk, bend, stoop, how often you need to change positions. And even how much you can lift this functional capacity evaluation will determine your physical abilities through a series of standardized test , to objectively evaluate your abilities. Instead of relying on your physician's opinions about your restrictions and limitations, the results of the FCE can make or break your disability insurance claim. So I get eight commonly asked questions about the disability carriers, CE, and I'm gonna give you not only the questions, but the answers one does the disability insurance carrier company have a right to make you undergo a functional capacity evaluation. The answer's gonna start with your disability policy, and we need to see what it says about the right to a physical examination, an independent medical evaluation, or a functional capacity. Not all policies will give the disability carrier the right to a functional capacity evaluation. And if you have any questions about whether your carrier has the right to have you undergo an FCE, you should be calling an experienced Arisa disability attorney and having them review the policy and giving you an answer. Now, as long as the F E request , uh , is granted by your term , the terms of your policy, and it's a reasonable request, you have to participate in that examination. Now, on the other hand, if the FCE is scheduled , uh , to take place hours away from your home, you've recently had surgery where there other extenuating reasons, then you might not have to undergo that functional capacity evaluation. Once again, I think you should be reaching out to an experienced there , ISA disability attorney, tell them your concerns and get their opinion about whether your personal circumstances would dictate whether or not you should attend the functional capacity evaluation. Two, how should I prepare for my functional capacity evaluation? Now I'm gonna answer this in a way that you may think is strange. Um, but if you are scheduled to have an FCE, I want you to go get your own FCE to be done several days prior to the carrier's functional capacity evaluation. Why I never trust that the disability carriers FCE is going to be accurate and more often than not, it's going to be , uh , done by a biased medical provider, a physical therapist who knows where their money comes from. And it's not from you. It's from the disability carrier. Now, do you have to bring your medical records to the FCE? Um , or what other preparations should you be doing? Well, I would say to you that you don't need to bring your records to the functional capacity evaluation. In fact, I would not bring those records to the FCE . If the carrier didn't supply the records to the , uh , physical therapist or occupational therapist too bad, so sad. But I do think that you should bring your necessary medications and take your medications as scheduled. If your doctor has you using an assistive device like a brace or a cane, bring it and use it. Guess what the dis a carrier's FCE provider may actually be looking out the window to see how you park your car, how you get outta your car, how you walk into the , uh , uh , facility, how you , uh, walk and , uh , function , uh , prior to the FCE , after the FCE , and watch you walk back to your vehicle. So make sure that you are using the device using it consistently, and that you aren't exaggerating. Now, one of the questions I get is should I be prepared for surveillance? And the answer is absolutely surveillance is a common tool that disability carriers will use to discredited disabled policy holders , complaints of disfunction. And you can reasonably anticipate that they're gonna have surveillance on you a couple days before the FCE, the day of the FCE and the day after the FCE, you don't wanna be the star in surveillance that shows you limping and gimping , uh , into the FCE. And then as you will walk out, throwing that cane into the trunk and walking normally, why do I say that? Cuz I've seen it. Question number four, what should I wear? Well, wear comfortable clothes and wear tennis shoes, leave all your jewelry, your wing rings, your watches, all sorts of that stuff at home. This is not a fashion show. This is a physical exam am . And as I said, bring your prescribed cane braces or other medical devices and use them as you would use them at your home. The fifth question, should I fill out any paperwork? I have pretty strong opinions about this and my opinions may disagree with other Arisa disability attorneys. But I think that other than filling out paperwork, you shouldn't be filling out any paperwork. Particularly if that paperwork asks questions about your activities of the other , living your functionality, the location of your pain or dysfunction asks you questions about , um, occupational duties or even ask you to take pain questionnaire testing. Look, the a physical therapist who's performing the FCE is reporting their observations to the carrier. And they're looking for discrepancies between what you put on your activity of daily living forms, what you told the doctors, what you told them in the forms that you filled out and what you tell them during the course of the functional capacity evaluation. So in my view, filling out forms just gives them more ammunition with which to deny your claim. Number six, can I take a break during the functional capacity evaluation? Now, typically you're gonna be allowed to have a bathroom break and a lunch break, but if you need to rest in between , uh, doing these functional activities , um, tell 'em that you need a break. Now don't exaggerate your need to break , uh, because they will report that. Uh , if they refuse to take a break, as far as I'm concerned, you should be telling them again that you need a break. Uh, they refuse. Then as far as I'm concerned, the FCE is over and you should be leaving. I tried to videotape FCEs. That's not always possible. And if you get into sort of an altercation with the therapist about the , uh , FCE, whip out your phone, turn on your recorder and, and try to record if they say you can't you're out of their baby. All right . Number seven. What should you do if you're asked to do tests that are outside of your restrictions, limitations as assigned by your physician? My advice is pretty simple. Follow your doctor's restrictions, limitations. Tell your FCE provider that your doctor has restricted you from doing X, Y , Z, and you're not going to deviate from those restrictions and limitations. Um, the therapist should be able to adjust the test or have you skip parts of the test. However, you need to be aware that the therapist is also gonna be reporting whether or not you're cooperating and giving full effort. So give your full effort, but just don't do any to tests that are outside of your restrictions, limitations. Number eight, what should you do if you can't complete the test? Now there's a trap here by the terms of your disability policy. You're required to cooperate with the FCE and you should always, always, always give your best efforts. If you can't safely form of task or the task is outside of the restrictions, limitations assigned by your doctor. Uh, you should , um, tell the therapist that you're having trouble and stop. As I've said, they should be willing to adjust the test or skip it , um, entirely if that doesn't happen, remember , um, leave, but you have a duty to, to cooperate. So we wanna make sure that you appear cooperative, that you are cooperative and that you adequately and fully comply with their instructions about how to perform the test. Again, that's one of the reasons why I want you to have your own functional capacity evaluation several days prior to the disability carrier FCE. I have FCE providers that I trust who will do an honest job of , uh , determining your restrictions. Limitations will understand your restrictions. And won't ask you to do something outside of your , uh , reported restrictions limitations. And it's always good to have that , uh , FCE done prior to the carriers FCE so that ultimately your FCE provider can comment on the results of the discipline insurance carriers. FCE. Got it. Eight questions, eight answers in the next segment. I'm gonna talk about the five things that could happen during the course of that disability insurance carrier's functional capacity evaluation. Let's take a quick break before we head into our next section. Welcome back to winning. Isn't easy. What are the five things that can happen during the course of a disability insurance company's functional capacity evaluation? When you apply for your disability insurance benefits, you have prove that you meet the definition of disability. Now it might be an own occupation, definition of disability, where you have to show you can't do the material and substantial duties of your own occupation, or you might be at the, any occupation stage where you have to establish that you can't do any other occupation based on your education, your experience, and your restrictions and limitations. So remember at all times your functionality, your physical abilities are going to be a question. The FCE is a way to objectively measure your restrictions and limitations. And many times your physicians has relied on your subjective complaints about your abilities, entering opinion about your , uh , functional capabilities. And there are times when you need to have an FCE , uh , to prove your own restrictions, limitations, where there are times when the disability carrier exercises their right to question your capabilities. By having a functional capacity evaluation, the FCE may be performed by an occupational, their therapist , a physical therapist, and in rare instances, a physician. Now, if possible, you should videotape that FCE. And if not, you should be consulting with an experienced, or is a disability attorney who can help you set up your own functional capacity evaluation and explain to you some of the ways that you can protect yourself during the FCE. Now what's the for first thing , uh , that you are going , that's gonna happen now , potentially during this FCE, the FCE provider can ask you to complete forms about your medical condition, your limitations, your vocational background, these forms are traps. I insist that the carrier send me all of these forms in advance so that we can complete them and make sure that they are consistent not only with your medical records, but what you've put in the activity of daily living form. Now, if there are questions about the vocational issues, I always refer the FCE provider to the occupational history that we've completed as part of the application process or tell 'em to contact their client who set up the FCE. Now, some of the forms that the FFC provider may ask you to do are not really forms, but their psychological and a lingering tests . For example, there's something called the McGill pain questionnaire. You do not want to complete them. If the FCE provider says that you have to, and they won't do the FCE, then you stop and say, I'm gonna consult with a lawyer. I'm more than happy to cooperate with a physical exam, but I'm not completing the psychological or malingering test that you want done until I consult with my lawyer. Now, why do they want you to do these malingering or psychological tests? They're looking to pay you as a liar. They're looking to pay you as someone who's exaggerating. They're looking to pay you as someone who is malingering , and we don't wanna help them by doing these kinds of tests. So tests like the McGill is a trap for UN worried disability claimants who are really setting themselves up for a claim denial. What's the second thing that's gonna happen, where they're gonna interview about your medical conditions, limitations and vocational background. To me, this interview is a test of consistency. What have you said in the past about your medical conditions, your limit and vocational background ? What are you telling them today? Now, as I've said, many times, I think that IESs functional capacity evaluations. They all should be videotaped. And if you can't at least record the conversation, if you can't, we wanna try to have a representative like a nurse present. And if that doesn't work, we want our own Fs C to be done several days before the carrier's FCE. What's the third thing they might wanna try to review your medical records with you. Now, the carrier should have sent your medical records to the FCE provider. So don't bring them. But if the FCE provider wants to discuss your medical records, tell them to put their questions in writing. And you'll answer 'em in a letter after the functional capacity evaluation, and don't be tempted to correct what's in your medical records or the functional capacity evaluators interpretation of your medical records. If you do any of those things, you're falling into the disability carriers trap. What's the third thing. I'm sorry. The fourth thing they're gonna tell your ability to perform activities like lifting, carrying, pushing, pooling, walking, standing, balancing, kneeling, crouching, crawling, and manipulating objects. Now I want you to think backwards. What are the occupational duties you can't do? Let's say you may have difficulties sitting, standing, lifting, or a combinate of those things . If the FCE provider doesn't test for the right types of duties or a combination of duties, or the kinds of breaks that you need, I'm gonna ultimately argue that this FCE is invalid. Now, the FCE provider's most likely gonna reach a conclusion about the range of your abilities and at a minimum, they're gonna say that you can do a full range of sedentary work, particularly if you're at the , uh, any occupation stage. Uh , but they're most likely are gonna say that you can do the full range of physical activity that your occupation requires. If they don't accurately test your abilities. I think that the FCE test is invalid, and I don't want you to help them by correcting your medical records or telling them well, this isn't quite the way that I do my job, or I'm having difficulty doing this or that. So let's test this. You're not helping yourself. You're setting yourself up for claims enough . Those are the kinds of things you do with your own FCE provider, not with a disability carrier's provider, number five, tracking your pain level. Now there is a subjective component to a functional capacity evaluation. The therapist is gonna assess whether you're giving full effort and whether your pain complaints are with the , uh , heart rate measurements or blood pressure measurements that they're being taken during the course of the FCE, they will try to determine whether your pain level is truly, truly preventing you from bleeding a task. And in my opinion, they're not competent or qualified to evaluate one person's pain or to interpret , uh , these ratings and relate them to a level of pain. Pain is unique to you yet. Functional capacity evaluators will draw conclusions about exaggeration that can lead to a claims denial. So I don't want you to fall in that trap. However, I don't want you to exaggerate. I don't want you to moan and grown and , um, you know, act like you really are a , a pain in the butt, as opposed to having real pain. I want you to be giving full effort. I suggest that you consider keeping a log of your pain levels for a week before the FCE, in terms of the location of your pain, the intensity, and the frequency of your , uh , problems. When you get into the FCE, you also wanna try to keep a log either there or immediately after the functional capacity evaluation. And certainly I would want you to keep that log for the week after the functional capacity evaluation, you might not be in a lot of pain before the FCE and the FCE may increase the pain or might not be in pain during the FCE, but your pain can return, or it can be dialed up. We want to document that. So those are the five things that can happen to you during the course of a carrier's disability, functional capacity evaluation. In my next segment, I'm gonna talk about the story of an executive Sue chef who had asked steel melitis and he was wrongfully denied his long term disability benefits by Harvard as a result of an FCE. We'll learn about the games that disability carriers play with. FCEs. Let's take a break.

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ERISA Attorney Nancy L. Cavey:

Welcome back to winning isn't easy. Let me tell you the story of an executive sus chef with osteomylitis, who was wrongfully denied his long term disability benefits by Hartford, based on the results of a functional capacity evaluation disability carriers like Hartford are always looking for and even willing to create reasons to terminate a disability insurance claim. Even if the policy holder has been on claim for many years now, what are the tools in the disability carriers? Denial toolbox is a functional capacity evaluation that is supposed to be an objective measure of the policy holder's level of physical functioning. Unfortunately, disability carriers will use biased, physical therapists who have an incentive to skew the FCE, the disability insurance carrier's favor. The physical therapist wants more referrals and more money as a result of , uh , performing the FCEs. So they're inclined to give the disability carrier exactly what they want to keep those referrals coming in. An FCE can be cherry picked by the disability insurance company so that they can reach a conclusion that you can engage at least in sedentary work, certainly at the any occupation stage. And the key here obviously is to demonstrate that you are not capable of engaging in sedentary work. So let me tell you this story of soup versus Hartford life. Now shup was an executive sous chef for the Hyat. He stopped working in 2004 because of osteomylitis, that's an infection of the spinal cord, and it's incredibly painful. Hartford accepted the claim and paid for 11 years. During those 11 years, he continued to receive treatment, including the in inserts of a spinal cord stimulator and prescription pain medication that caused significant cognitive impairment. Now, har didn't wanna pay benefits a day longer than it had to. And certainly not until he reached age 65. So what did they do? Well, they reached in to their disability insurance carrier denial toolbox, and scheduled him for a functional capacity evaluation to determine whether or not he could do sedentary work. Now, the FCE provider opine that shup could only sit for 10 minutes at a time and was impaired by medication. Nonetheless, the FCE provider opine that shup could engage in sedentary work. Now, of course the claim was denied and he appealed. He submitted reports of an IME in his own functional capacity evaluation. His own FCE provider found that he couldn't function even at a sedentary level. Now, one of the things you need to understand is is that sedentary work basically means that you have a limited sitting , uh , capability and that you generally can't sit more than two to four hours out of an eight hour day. So think about this, the FC provider opine that he could only sit for 10 minutes at a time. Now, when the appeal was filed, Hartford said, well, heck no, we're not gonna reverse our position. We don't wanna pay benefits. And ultimately he filed suit and it ended up in the fourth circuit. Now, fortunately for him, the fourth circuit used what's called a de Novo standard of review. The court was able to independently reach its own decision and was not by har first claim denial. But I think that there are some important lessons to be learned from this case because the court really talks about the two ways to attack an unfavorable functional capacity evaluation. The first is internal inconsistencies in the FCE and two are medical histories and contemporary news evaluations by medical provi let's first talk about internal inconsistencies. The court , uh , rejected Hartford's FCE on the basis that it suffered from practical and logistical inconsistencies. Now, remember I said that the FCE results indicated he could only sit for 10 minutes at a time and he could and , and needed to change positions frequently. The FCE result or conclusion that he was incapable of doing , uh , sedentary employment is inconsistent internally inconsistent with the definition of sedentary work, because there is a limited ability to sit the need to sit and stand. And alternate positions also erodes a sedentary occupational base. Now for your information, social security disability appeals can end up in federal court. And as a result, federal judges understand what the definition of sedentary employment is certainly in the context of the social security case and the social security , uh , standard is to use the dictionary of occupational titles definition of sedentary work. So it's the recognized standard. So the court really understood this internal inconsistency in Hartford's functional capacity evaluation . But what was also crucial in this case was she's contemporaneous medical history that predated FCE, the medical records, all concluded that he was incapable of full-time sedentary employment. And in fact, Hartford's doctors had concluded that until they decided to have the FCE. So the court held that Hartford's FCE was an unsupported outlier and rejected it. The fourth circuit reversed the I awarded benefits and reinstated his benefits. And that's a phenomenal result. What should you do if the disability carrier sets you up for an FCE or denies or terminates your benefits based on an FCE, as you can see that FCE can make or break your case. So if the carrier is sending you to an FCE , you wanna make sure first they have the right to an FCE two. You wanna get your own FCE before the carrier's FCE three , if you can videotape it, you want to, if not have a representative there, and ultimately you wanna have the , uh , your physician reviewed the FCE provider and endorse your FCE and , um, basically have your physician reject the disability carriers FCE . And of course, ultimately your FCE and your care , your physician's endorsement of your FCE needs to be sent to the disability care. Now, if your claims have been denied or your benefits have been terminated because of the results of an FCE, you wanna hire an experienced Arisa disability attorney who can take apart that FCE and attack the underlying vocational implications that you're capable of doing your own occupation or any occupation. Don't leave this unchallenged because if you don't , uh, appeal, and if you don't get this evidence, the circuit court can tell you too bad. So sad. We're not gonna reverse this decision. I hope you've enjoyed this week's episode of winning. Isn't easy. If you've enjoyed this episode, consider liking our page, leaving a review or sharing it with your friends or family. Also put subscribe to this podcast. That way you're gonna be notified every time a new episode comes out. I hope you tune in for the next week's insightful episode of winning. Isn't easy .

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