Jury Awards FM/CFS Patient

Discussion in 'Fibromyalgia Main Forum' started by shackled, Mar 21, 2007.

  1. shackled

    shackled New Member

    I like to know how many people have been able to win a case. I lost mine 3 years ago because of an FCE test. I my doctor didn't follow the notes from my previous doctor which said no FCE test could ever be given to me. Saw a lawyer who said because of one error from this Dr. and the FCE test said your lying; i received a letter saying no more payments. This was an insurance policy that I paid for 14 yrs. hoping to never use but due to FMS caused from failed back surgery can no longer work. ANY ADVICE would be helpful.
    I'm pleased for this case but here in Texas still not winning any.
    Shackled
  2. obrnlc

    obrnlc New Member

    hi shackled!
    sorry to hear about your insur. dilemna, do you still have an appeal open?
    One thing you can do is get their invoices (required to send to you) from the FCE, but FIRST, have your att. or a doc record a call to find out the cost for a person w/no insur. to be tested (like they are setting up an appointment)
    i did this and was amazed (so was att.) @ the price the disab. paid for "what they wanted to hear" versus the cost for a regular patient!

    It sounds like you don't have an appeal, tho, if it has been 3 years, next need to see if this is an ERISA case or not (maybe not if you paid for it--- 100%?) Then go shopping for a really good lawyer willing to take a case like this on contingency, cuz it is going to be tricky.

    You didn't by any chance VIDEOTAPE your FCE, did you? I didn't and knew that i should have since they "lined the pockets " to the tune of $800+ for a test given to regular pts for $200! My husband decided it would just be too rude, what fools we were! You are dealing with the devil on this one--Good luck--L
  3. vicket

    vicket New Member

    What is this FCE test?..............vicket
  4. Shalala

    Shalala New Member

    Looks like it is yet another way to stick it to us. I found this at the CFIDS Assn of America web site ....

    Commentary
    Disability Tests: Finding a Fix for the FCE
    By Richard Podell, MD, MPH

    Mary Tierney is a divorced, 34-year-old attorney. She has been unable to work since she developed severe CFIDS in early 1999. Her private disability insurance carrier agreed that she was disabled, and began to support her with monthly checks at about one-third her prior salary.

    Early this year, however, Mary’s insurance company re-evaluated her case. What happened next is a scenario feared by thousands of CFIDS patients across America: The insurance carrier, using tests that do not measure the true nature of the disability CFIDS creates, decided to deny Mary further benefits.

    Mary was asked to take a Functional Capacity Evaluation (FCE), a battery of tests insurance companies employ to determine eligibility for disability payments. The standard FCE protocol of relatively brief exertion was designed to evaluate a broad range of conditions, including bad backs, painful knees, emphysema and heart disease.

    In most cases, the FCE works fine. If a person’s back is stiff, or if he or she limps with each step, one should be able to observe that accurately within just a few minutes. If you put someone on a treadmill who has angina or emphysema, symptoms — if they are to occur — will usually appear during the stress test or within a few minutes after. This “acute reaction” model is what current FCE protocols assume.

    However, this is not a valid model for people with CFS. Mary’s case demonstrates why. Mary reports that on good days she can read intensely for about an hour, or spend two hours running errands, but not both. Either way she has to lie down for several hours each afternoon. On bad days she is much worse.

    Most frustrating of all, when she does have a good day and increases her activity, she almost always pays a price. Not immediately, but several hours or even a day later, fatigue and muscle pain would flare and her concentration would fall. She would usually recover within a day, but if she had extended herself significantly it might take a week.

    Before taking the FCE test, Mary rested for a few days to be able to do her best. Over about one and one-half hours she did 15-minute bursts of light to moderate exertion — touching her toes, lifting 10 pounds, crawling, sitting, etc. Five minute breaks were allowed between sessions. As the testing continued, Mary told her tester that her pain was getting worse and she feared that a flare-up of symptoms would take place by evening. She asked how she could report this to the tester, so it could be included in her record. The therapist suggested that she take that up with her case manager. Mary slept all the way home in a taxi, then crawled into bed and essentially stayed there for the next day and a half. It took about a week to gain her pre-testing status.

    Three weeks later, her attorney received a letter. The insurance company said that Mary could lift 10 pounds frequently, push, stoop and crouch occasionally and sit in a chair for 30 minutes if allowed to shift positions. The report concluded that she was capable of resuming full-time work in her old job as an attorney. There was no explanation of how this judgment was made.

    What’s wrong with this picture? How can someone whose ongoing function is so limited be judged to score so well on just a one- to two-hour test that the tester is confident she can work full time?

    The answer: A sad misunderstanding. The FCE tester and CFIDS experts are speaking different languages. We need a clear translation if each is to understand what the other is saying.

    Some CFIDS patients are unable to do even limited exertion. The current FCE can document their limitations, and they would be viewed as disabled. However, CFIDS often has a very different pattern. People may push through during short bursts of activity, but later their symptoms flare and they are not able to function. This delayed phase response is precisely the phase of testing that current protocols omit.

    The standard FCE may be an excellent and valid tool for evaluating bad backs, but it is not appropriate, fair or valid for evaluating the delayed flare-up pattern that is characteristic of CFIDS. We need to add tools to our toolkit, ones that are able to measure the delayed phase reaction.

    If insurance industry consultants, patients, physicians, attorneys and judges can agree that there is a problem that needs fixing, it should be fairly easy to design better tools. For example, one could make FCE testing more realistic by extending its duration from two hours to four, and by bringing the patient back to repeat the testing over several consecutive days. There’s a downside risk, of course: Some patients will become much worse, perhaps irreversibly. However, that risk could be limited by close medical monitoring, both during and after each test. Insurance company staff should accompany the patient home and/or check in with them by phone at intervals. To ensure the accuracy of their reports, patients might agree to keep a camera in their home or a radio location surveillance device on their person for several days.

    In the Ampligen research trials, the Food and Drug Administration requires our patients to wear tachometers. These motion-measuring devices are worn for a week before and a week after each time we do an exercise stress test. We supplement this information with detailed questionnaires.

    There is a desperate need to create a forum to develop a new disability assessment paradigm. Clinicians, disability attorneys and insurers, and rehab and occupational therapists should work together to define new methods of assessing function in chronic conditions. This would be a great service to patients with these illnesses, as well as the professionals they rely on to document their disability.

    There’s little to lose and potentially much to gain by taking the initiative to develop reasonable and fair solutions.

    Richard Podell, MD, MPH is clinical professor in the department of family medicine at Robert Wood Johnson Medical School in New Jersey. His is a principal investigator in the Ampligen research trials. Dr. Podell practices in Springfield, N.J. His office telephone number is 973-218-9191. (Please note: Physicians are not permitted to offer specific medical advice to people who are not their patients.) For more information, see his Web site at www.DrPodell.org.

  5. shackled

    shackled New Member

    Thank you so much for ans. As you can tell this is a day later can only stay on for short times as i'm sure most of you are aware of how that is.
    This was my first time to chat; and thankful that I did. No we didn't video; no I don't have an appeal and yes I talked to another attorney in Houston but he wanted $10,000 to just talk to me. If I had that well yes I do it for the principal of it all.
    I did go into PT afterwards for a month and he told me how the pockets are lined by the insurance company. I was so upset that I wrote a letter to the PT and complained about the place that I had my FCE. My doctor never responded back to them so you know what happened "nothing". No he is not my doctor anylonger.
    It has been a tough 10 year road 5 on disability and yes I'm grateful I have that.
    What I resent is being pushed over the cliff by a so called pt expert for the love of money; at the cost of my health, and financial well being. I've never recouped I too didn't know what I was lifting and she had a 20lb weight in a concelled box that took me too the ground. Hope she is feeling good about herself.
    All this to say thank you for your advice and mostly for sharing.
    Maybe someone out there will read this and know to seek legal advice before ever doing one of these test. I wish we had known. My husband is supportive and kicks his self too but you know who needs to be kicked and it's not us.
    Thanks a better day because of each of you.
    Shackled but one day i'll be free.
    [This Message was Edited on 03/22/2007]
  6. shackled

    shackled New Member

    When I had my FCE test my doctor didn't give me any warning I received paperwork from the insurance company that my disability insurance was through. Gave them a call they told me who to see when to go and when I called that PT asked if she would like me to bring my records and I was told she had everything she needed.
    I did my best it was a 2 day test. I was in tears because of the pain. The strap across my chest was bad enough; not able to wear anything binding at all since back surgery. Have hardward but you know what I was told if I didn't do it (by Pt) that I would lose my money.
    I lost more then the money. When seeing my own PT he informed me of what had happened to me and how come he doesn't do that anylonger for those people (insurance). I pass along the information to anyone I hear that is rec. diability from insurance. It was because I didn't know any better that I got hurt beyond repair. No one to sue I signed the waivers now it's between them and God.
    Thank God for my husband who was there and saw it all and he and I live with wishing that we had not gone through it. I thought my integrity was so important I had to do my best. Shame on me.
    Please let us keep telling our story so others won't end up this way.
  7. auntkisty

    auntkisty New Member

    When you apply for disability do you have to do an FCE test? Is there anyway your doctor can tell them that you physically could not handle the test? I am a physical therapist and have been unable to work since 2005 because my CFS/FMS has become so bad. It is sad and yet angers me that my profession can be so ignorant at treating patients with this disease. What can I do to avoid the test? I have been unable to function since monday from hitting about 15 tennis balls to my son. I didn't even move from one spot! I am just getting frustrated at this overexertion reproducing symptoms. I listen to my body yet am unable to define the point of no return!
  8. shackled

    shackled New Member

    Auntkisty,
    Your doctor can stop it and put limitations on them as well. My first doctor kept me from the FCE test I wasn't aware of it until I went for my appeal and they (insurance) had to send me all paper work that I requested. If you ever go for an appeal you need to ask for all your file including, pictures, video, recordings and all written material (per my attorney)which I did. That is where I found that my 2nd doctor didn't place any restrictions and that is the reason I had the FCE test and the reason they were able to do as much as they did to me. Like lifting a 20lb weight inside an enclosed box. I asked about the weight before lifting and was told she couldn't tell me. When I dropped to the floor was when i found out it was 20lbs. With hardware in my back I'm not suppose to pick up over 10lbs and haven't for over 10 years. So yes if you get a request from your insurance company to do an FCE test talk to your doctor and I would also talk to an attorney; knowing what I now know.
    Good luck
    Shackled
    [This Message was Edited on 03/26/2007]
  9. ephemera

    ephemera New Member

    fce info bump

    nice article from Dr. Podell