An insurance company's "paper review" doctor cannot dismiss the findings of a functional capacity evaluation (FCE) as merely subjective and thus insufficient evidence of disability.
Fritch v. United of Omaha Insurance Company
Stennett & Casino filed a complaint in San Diego Federal District Court against United of Omaha Life Ins. Co. for terminating its client's long-term disability (LTD) benefits. United of Omaha initially paid LTD benefits due to disability related to the client's low back pain following two surgeries. Omaha, however terminated benefits after one year concluding that the surgeries had resolved client's low back problems.
Stennett & Casino had their client undergo functional capacity testing and submitted the findings of that testing to Omaha during the administrative appeal process. The Functional Capacity Evaluation (FCE) found that the client had a maximum sitting tolerance of approximately twenty-seven (27) minutes and a standing tolerance of between two (2) and ten (10) minutes. Omaha had its physician, Dr. Neuren, review medical records including the FCE. Dr. Neuren dismissed the FCE as merely a restatement of subjective complaints and concluded that there was a "lack of support" for ongoing impairment.
United also sent a letter to the client's treating surgeon asking him to agree with its assessment that although the client had some ongoing limitations due to his back condition, he was able to return to his prior occupation. The surgeon signed the document and returned it to United indicating his agreement.
Prior to the trial, Stennett & Casino contacted the surgeon and provided him with a copy of the FCE and a description of the client's job duties, which he had never previously seen. After reviewing the FCE he provided a statement in which he deferred to the FCE findings of disability describing it as "thorough in its testing and evaluation of functionality."
The District Court found that Stennett & Casino had met their burden of proving that their client was disabled under the plan commenting that Omaha's physician and nurse's paper reviews, which included no examination, observation or discussion with the client were less persuasive than the information provided by Stennett & Casino from the treating physicians and FCE. The court ordered payment of all LTD benefits to the client. The court's opinion can be found at Fritch v. United of Omaha Life Ins. Co., 2017 U.S. Dist. Lexis 201141.
Additional resources provided by the author
The court’s opinion can be found at Fritch v. United of Omaha Life Ins. Co., 2017 U.S. Dist. Lexis 201141.
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