But what happens when the claimant refuses to perform tasks requested, or does not try hard enough during the FCE?

Can you deny the claim for “lack of cooperation”?  Sometimes YES.

Here’s the case of Ortega-Candelaria v. Johnson & Johnson, __ F.3d __, 2014 WL 2696725 (1st Cir. June 16, 2014).

FACTS: In June 2003, plaintiff applied for ERISA-governed disability benefits because of back pain, anxiety and panic attacks. He failed to cooperate in a number of Functional Capacity Evaluations (FCEs) conducted by a physical therapist. Plaintiff “declined all lifting, carrying, pushing, pulling and climbing activities” and gave a “sub-maximal effort” on tasks. The Plan discontinued benefits “due to his lack of cooperation in the evaluation process.” Plaintiff sued, claiming a doctor had to conduct the FCE. The trial court granted summary judgment for the plan.

FIRST CIRCUIT HELD: AFFIRMS SUMMARY JUDGMENT.

  1. The results of the FCE “‘suggest[ed] very poor effort or voluntary sub maximal effort, which is not necessarily related to pain, impairment or disability.’”  Op. at 10.
  2. “He failed 86% of the validity criteria…Video footage supports the conclusion that [plaintiff] was not cooperative.”  Op. at 19.
  3. “The Plan terms require that [plaintiff] cooperate during evaluations of his disability status; without such cooperation the plan administrator [can reduce or terminate benefits].”  Op. at 20.
  4. The decision to terminate benefits due to lack of cooperation was not an abuse of discretion. Op. at 20.
  5. An FCE evaluates a medical condition; a physician is not required for the test to be used in assessing impairment. Op. at 23.