A Functional Capacity Evaluation is used by the insurance companies to weigh your lack of earning capacity in terms of what jobs you can physically perform following your injury. This is known as Maximum Medical Improvement (MMI). In the Defense Base Act context, this comes up under a Lack of Earning Capacity.
The insurance companies use Functional Capacity Evaluations to see if you are lacking effort. In other words, they are looking to see if you exaggerated or lied about your symptoms and injuries. The insurance companies will then seek to use that against you in court.
Our best advice is to be totally, brutally honest, and do the exercises that you know you can do. At some point some doctor is going to say that you could’ve done better. So be direct and honest. Don’t be afraid to be truthful.
These types of things are easily argued on our side in terms of abilities and each person’s individual capacity to do jobs. This is especially true in combat settings overseas.
Your best effort may be challenged as you do not want to worsen your existing injuries. For example, they may ask you to bend down and touch your toes ten times. If you are still healing from a back injury, this may be a challenging task. The easiest thing to do is to explain yourself and say, “Hey, I might be a little afraid to do this particular exercise.” Simply be straightforward and honest with them.
Remember that they are more interested in whether you have exaggerated your claim than in how many pushups you can do or how quickly you can walk. That is all they are looking for. They’re checking to see if you’re exaggerating, or not making an effort, to pretend as if you can’t accomplish certain physical tasks.
It’s also a very good time for the insurance company to do surveillance on you. They know where you are and they may actually follow you throughout the day to see if what you exerted in your Functional Capacity Evaluation comports with what you’re doing during that day.
If you do the exam and you can’t do certain things, but are later observed performing similar tasks, they will seek to use that against you in court. These examples are useful in the context of the Defense Base Act.
- They may be watching how you get in and out of your car.
- They be watching how you light a cigarette.
- They may be watching how you walk down the sidewalk.
- They may be watching how you perform certain household tasks (i.e. mowing the lawn)
You may have questions about Functional Capacity Evaluations, or any other thing that has to do with your Defense Base Act claim. You can call us any time for free and get the answers you seek.
If you are injured on duty, and even before you are deployed overseas, you can always contact Garfinkel Schwartz Law Firm and send us your questions. We have a 24-hour line (+1) 800-393-2999 available for you to call us at any time. We will get back to you as soon as possible.