This article was initially published in the Chicago Daily Law Bulletin on April 13, 2017.
By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of DeBofsky Sherman Casciari Reynolds P.C. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage . He can be reached at[email protected].
The value of functional capacity evaluations in establishing entitlement to disability benefits was made evident byMadison v. Greater Georgia Life Insurance Co., 2016 WL 8648862 (N.D. Ga. Dec. 21, 2016), a recent federal court decision from Georgia.
The case involved Ricky Madison, a transport driver for an oil company who applied for disability benefits due to problems with his left knee. After undergoing knee surgery to repair torn cartilage, Madison reported ongoing pain and difficulty walking.
Although several doctors who examined Madison were unable to determine the precise cause of his problems, they all acknowledged the presence of a chronic defect in the joint.
Madison ultimately underwent a functional capacity evaluation, which determined that he could not safely or effectively perform his occupation of driving a tanker truck.
Before the functional evaluation took place, the group disability insurer for Madison’s employer, Greater Georgia Life, had terminated disability payments following the surgery. An orthopedic surgeon performed a review of Greater Georgia’s clinical summary of the evidence and concurred with the benefit denial.
A subsequent review performed by a second orthopedic surgeon after Madison appealed the benefit termination reached the same result.
However, Greater Georgia permitted Madison to submit a second “courtesy” review. Although the functional evaluation findings were provided as part of the second appeal, a third orthopedic surgeon retained by Greater Georgia to review Madison’s records found no functional limitations.
The court determined that Greater Georgia’s decision was both wrong and an abuse of its discretionary authority to render claim eligibility determinations.
The court began its discussion by rejecting Greater Georgia’s argument that the scope of review was limited to the record assembled prior to the courtesy review. The court determined that since “GGL saw its courtesy review decision as giving rise to potential liability,” the evidence presented as part of that process should be considered.
The court further observed that a contrary conclusion would incentivize “administrators to grant requests for courtesy review and then either slow-roll a decision or provide no meaningful review at all in an effort to delay suit. That’s not what ERISA [Employee Retirement Income Security Act] requires and not what this [c]ourt permits. Indeed, ERISA contemplates ‘voluntary levels of appeal’ and in doing so never removes those levels from judicial review. See 29 C.F.R. Section 2560.503-1(c).”
Turning to the merits, by comparing Madison’s required occupational duties to his documented physical limitations, the court found the evidence supported a conclusion that Madison could not meet his job requirements. The court relied heavily on the functional evaluation which it found, unlike the contrary file reviews obtained by Greater Georgia, “actually measured” Madison’s physical abilities in relation to his occupational requirements.
The court further observed that “the FCE [functional capacity evaluation] contained several effort verification measures that prove he ‘gave it all he had’ and did not try to game the exam” which, in the court’s view, “enhance[d] the functional evaluation’s objectivity and thus its evidentiary value.”
The court added that the functional evaluation specifically tested Madison’s ability to perform his actual job duties such as floor to waist and waist to overhead lifting, ladder climbing, balance-related tasks, bending, squatting and kneeling.
Hence, the court concluded as to the significance of the functional evaluation findings:
“First, FCEs do provide a reliable, objective assessment of an individual’s work-related function level. SeeWise v. Hartford Life & Accident Insurance Co., 360 F.Supp.2d 1310, 1326 (N.D. Ga. 2005) (FCEs ‘have at times been described by courts in this [c]ircuit as “the best means of assessing an individual’s function level”‘);Brookbank v. Anthem Life Insurance Co., No. 1:15-cv-165, 2016 WL 1611380, at *13 (S.D. Ohio Apr. 20, 2016), adopted, 2016 WL 2853578 (S.D. Ohio May 16, 2016) (‘In the ERISA context … a “functional capacity evaluation, [is] a reliable and objective method of gauging the extent one can complete work-related tasks.”‘).”
The court further noted that functional evaluation testing is performed by “licensed, trained professionals well-suited to assessing whether a given injury impacts functional ability. Surgeons, by contrast, better evaluate whether a personhas an injury and whether surgical intervention could aid recovery” (emphasis in original).
The court then turned its attention to Greater Georgia’s medical consultants. The first orthopedist’s findings were rejected because she did not even have records to review – she only assessed Greater Georgia’s “clinical highlights” and a referral form.
The court then invalidated the second reviewer’s findings because he failed to articulate any consideration of contrary medical opinions that were likely not even provided to him for review.
Finally, the court appraised General Georgia’s final consultant and deemed his review deficient because he did not even mention the functional evaluation, much less explain any basis for disagreeing with its conclusion.
AlthoughMadison was persuaded by the functional evaluation findings, other courts have questioned the ability of such testing, which is generally conducted over the course of three or four hours, to interpolate a worker’s functional ability over the course of a 40-hour work week.
A leading case taking such a position isStup v. Unum Life Insurance Company of America, 390 F.3d 301 (4th Cir. 2004), where the 4th U.S. Circuit Court of Appeals determined that a functional capacity evaluation lasting 2’½ hours could not predict functionality over an entire workday or workweek.
However, the court was rightfully suspicious of the functional evaluation finding in that case because the other evidence presented consistently supported the claimant’s disability with clinical findings.
Other courts have recognized the ability of functional evaluation testing to determine a disability claimant’s ability to perform their regular job. An example isMajeski v. Metropolitan Life Insurance Co., 590 F.3d 478 (7th Cir. 2009), where the 7th Circuit Court relied on a functional evaluation test over the opinion of a consulting physician who reviewed records rather than examining the claimant.
The court concluded that the functional evaluation’s test findings demonstrated the plaintiff’s inability to work as a nurse case manager. Thus, as theMadison case illustrates, while functional capacity evaluations have their limitations, they have their place in objectively documenting functional limitations based on specific test findings and measures of testing validity.
Note: I represented the plaintiff in the Majeski case.