You are hurt on the job, and you were working offshore. You get some initial medical treatment. At some point, your employer or the maritime claims adjuster is going to want to send you to get an FCE (Functional Capacity Evaluation). There seems to be a lot of confusion about FCEs among maritime workers. As an experienced attorney handling Jones Act lawsuits for over a decade, I would like to clear up this confusion so everybody can be on the same page.
Why does your company want you to get an FCE? Your company wants you to get an FCE as soon as possible after your injury. They are hoping the FCE report will show that you have healed from your injuries, and that you are 100% fit to return to your job. If the FCE report says this, your employer can stop all of the Jones Act benefits you are receiving, such as maintenance and cure and any financial advances.
Sometimes your employer may tell you that you must submit to an FCE at their request in order to continue receiving your Jones Act benefits. This is not true. The decision when you should submit to an FCE is a medical issue and is entirely within your doctor's discretion - not your employer's discretion.
Employers have several tricks up their sleeves designed to skew the FCE in their favor.
- Initially send you to a company doctor, who does what the company says. Your employer will tell the company doctor to refer you to a particular clinic for your FCE - it will be a company clinic. Then, the company clinic does what the company wants it to do - clear you for work so it can stop paying you benefits.
- If you are being seen by an independent doctor rather than by a company doctor, your employer will call your doctor often and try to convince him or her to send you for an FCE. Your employer will tell your doctor which clinic they think should administer your FCE.
- Your employer may contact you directly, and tell you to go get an FCE on your own. Your employer will suggest a clinic, and you can bet the clinic will be a company clinic. Your employer may tell you that you have to get the FCE in order to keep getting your Jones Act benefits, but this is not true.
So, what can you do to avoid these traps?
Make sure that you are not being treated by a company doctor. You should seek out an independent doctor to treat your injuries.
If your independent doctor refers you for an FCE, go to it. The clinic that administers your FCE will write a report, and give the report to you and your doctor. Your doctor will read the FCE report, and then give you his medical opinions on your injuries, treatment and work restrictions.
Keep a lookout and make sure your employer is not somehow influencing your doctor or the FCE clinic. You want the FCE process to be independent, not influenced by the interests of your employer. If you see some red flags that make you question the integrity of the FCE process, talk directly to your doctor about it.
If you have questions about functional capacity examinations, feel free to contact us and one of our experienced Jones Act lawyers will gladly assist you.