Many employees in Chicago and throughout Illinois who are receiving long-term disability insurance are asked to attend a functional capacity evaluation, or an FCE as the insurer may refer to it as. Not uncommonly, the FCE examiner is a physical therapist, and after administering a number of tests on your ability to sit, stand, walk, lift, carry, and other load bearing activities, concludes the physical demand level at which you can work and whether you can perform a particular occupation. Insurers readily rely on those conclusions, but recent case law indicates they should not be so quick to focus on the conclusions, because the underlying test results mean more than the ultimate conclusions interpreting those test results.
In Tassone v. United of Omaha Life Insurance Co., No. 15 C 8557, 2017 U.S. Dist. LEXIS 142464 (N.D. Ill. Aug. 30, 2017), a case this firm handled, plaintiff sued to recover long-term disability insurance benefits under ERISA § 502(a). United of Omaha terminated plaintiff’s long-term disability benefits after two years under a “self-reported symptoms” limitation. During her appeal, plaintiff submitted a functional capacity evaluation report. United of Omaha argued the examination report supported the benefit termination because the examiner checked a box on the report stating the physical demand category was “light.” The underlying tests, however, showed plaintiff could only sit for 15 minutes, and could stand for 10 minutes. A subsequent FCE also said plaintiff could perform “light” exertion work, but the underlying tests of the FCE showed an ability to sit for only 24 minutes before experiencing extreme pain.
The Court gave no weight to the conclusions by physical therapists of the level of work plaintiff was able to perform based on the FCE tests. Instead, the court explained the results of underlying tests mean more than the therapist’s opinions of what those test results mean regarding the plaintiff’s ability to work at a certain physical demand level. Because sedentary work requires sitting at least 6 hours per day, the underlying test results were incompatible with working full-time at a sedentary level or above. If you have a claim for long-term disability benefits, get help. Call an experienced ERISA long term disability attorney today.
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