What to Expect at your Functional Capacity Evaluation in your DBA Claim

What to Expect at Your Functional Capacity Evaluation in Your DBA Claim

At some point in many Defense Base Act claims, the treating physician or the DBA insurance carrier will request that the injured contractor attend a Functional Capacity Evaluation (FCE). Understanding what to expect at your functional capacity evaluation in your DBA claim is critical, because the FCE results are often used to determine your permanent work restrictions, employability, and even the value of your Defense Base Act settlement.

An FCE is a comprehensive, usually lengthy (could be hours), medical and functional assessment of an injured contractor’s safe tolerances and physical limitations in relation to work demands. Defense Base Act Lawyer Tim Nies, a veteran of the U.S. Army’s 3rd Ranger Battalion and experienced Defense Base Act attorney, regularly guides his clients through this process so they are prepared, calm, and focused on giving an honest and consistent effort.

What Is a Functional Capacity Evaluation (FCE)?

In most DBA claims, the FCE is performed by a physical therapist or other trained evaluator in a clinical setting. The evaluator follows a standardized series of physical tests to measure your capabilities and restrictions. Thesetests may include:

• Physical strength testing (pushing, pulling, carrying, grip strength)
• Range-of-motion measurements for your neck, back, shoulders, and other joints
• Lifting and lowering tasks, sometimes from floor-to-waist and waist-to-shoulder
• Flexibility and postural tolerance (sitting, standing, bending, squatting)
• Stamina and endurance over time, including walking or treadmill tasks
• Functional activities such as stair climbing or simulated job tasks

The scheduling of an FCE generally indicates that you are approaching the end of active curative treatment, even if You may need palliative care for the rest of your life. Your treating physician will often rely heavily on the FCE Report when setting your permanent restrictions in your Defense Base Act claim.

How Effort and Consistency Are Evaluated at DBA FCEs

The tests you undergo during a functional capacity evaluation are not only intended to determine what you can and cannot safely do; they are also designed to measure the sincerity and consistency of your effort. Many FCE protocols include built-in “validity” checks that compare your performance across different tasks and over time.

During the FCE, your blood pressure, heart rate, and breathing may be monitored. If you appear to be straining heavily during a task but show normal vital signs and no physiological response consistent with that level of effort, the evaluator may conclude that you are exaggerating symptoms. The FCE report may then include comments about “submaximal effort,” “symptom exaggeration,” or “secondary gain”, language that DBA insurance carriers quickly use to attack your credibility. So, do not exaggerate pain.

Evaluators may also watch you when you are not actively testing, for example, how you walk from the lobby to the exam room, how you sit, stand, or bend when you think you are not being observed. For this reason, it is important to be honest and consistent at all times, not just when you are in front of a machine or performing a formal task.

There is no way to “beat” an FCE. As a seasoned DBA lawyer, Tim Nies advises his clients to do their best, be honest, and communicate clearly with the evaluator about pain levels, fatigue, and any increased symptoms during and after the testing.

Communicating With Your Treating Physician After the FCE

After the FCE is completed and the report is prepared, it is essential that your treating physician review the findings with you in person whenever possible. During this appointment, you should explain:

• How you felt during the tests (pain, dizziness, weakness, or shortness of breath)
• How you felt immediately after the FCE
• How you felt in the days following the FCE (increased pain, flare-ups, stiffness, or swelling)

This follow-up discussion allows your physician to understand how your body truly responded to the demands of the evaluation. Your doctor can then place the FCE findings in context and, where appropriate, explain in the chart why certain tasks aggravated your condition or could not be completed.

Impact of FCE Results on Your DBA Claim

Depending on the FCE results, your physician may state that you can return to work without restrictions, with permanent restrictions, or not at all. In the Defense Base Act world, most contractors work six or seven days per week, often in body armor weighing 50+ pounds, in austere environments, and frequently carrying heavy weapons. Many positions in Iraq, Syria, Afghanistan, Kuwait, Somalia, Ukraine, and other theaters require that contractors be medically cleared and free of restrictions.

If your permanent restrictions prevent you from returning to your former job, or from earning your pre-injury wages in another job, this can significantly affect your entitlement to ongoing DBA compensation benefits. Understanding what to expect at your functional capacity evaluation in your DBA claim will help you appreciate why this single appointment can shape the course of your entire case.

Why You Should Have a Defense Base Act Lawyer Before Your FCE

If you have been ordered to attend an FCE and have not yet hired a Defense Base Act Lawyer, this is a critical time to do so. Around the time of the FCE, many DBA claims are entering the settlement phase or moving toward vocational assessments and potential litigation.

An experienced Defense Base Act attorney like Tim Nies can:

• Explain the purpose of the FCE in plain language
• Prepare you for the structure and length of the evaluation
• Discuss common traps insurance carriers set around FCE results
• Review the FCE report and medical records for inaccuracies or unfair conclusions
• Coordinate with your treating physician to ensure your true limitations are documented
• Use the FCE findings strategically during a DBA mediation or a formal hearing at the OALJ.

Having a knowledgeable DBA lawyer and experienced DBA paralegals in your corner can significantly improve your chances of securing fair compensation and medical care under the Defense Base Act.

Fees and Cost of Hiring a DBA Lawyer

Many injured contractors worry about how they will afford legal representation. Under the fee-shifting provisions of the Defense Base Act, when a DBA lawyer successfully obtains benefits for you, whether through voluntary payments, settlement at DBA mediation, or a favorable decision after a formal hearing at the Office of Administrative Law Judges (OALJ), your DBA attorney’s fees are paid separately by the DBA insurance carrier, subject to approval by the Department of Labor or the OALJ.

In other words, you do not pay a percentage of your recovery to hire Tim Nies. His fees are not taken out of your compensation benefits; they are sought directly from the DBA insurance company once a benefit has been obtained. This allows injured contractors to have quality representation without worrying about hourly bills or contingency percentages.

Contact an Experienced DBA Lawyer About Your FCE

If you have questions about an upcoming Defense Base Act FCE, or if you want to better understand what to expect at your functional capacity evaluation in your DBA claim, you should speak with an experienced DBA lawyer before the evaluation occurs.

Attorney Tim Nies has represented injured contractors worldwide for many years and is available to answer your questions about what to expect at your FCE in your DBA claim and your rights and benefits under the Defense Base Act. Call 772-283-8712 for free.