Federal Court determines that injured seaman may refuse employers request for
a Functional Capacity Examination.

The general rule in personal injury litigation and specifically in Jones Act cases involving injured seaman is that the injured party may be compelled by his employer to endure a Functional Capacity Examination (FCE) arranged by the employer and utilizing the employer’s experts. FCEs typically consist of three days of physical and mental testing and are utilized by employers to create evidence that an injured plaintiff is faking or exaggerating his symptoms. The tests are performed in the presence of only the employers’ experts and these hired guns predictably almost always testify in such a manner as to damage the value of an injured seaman’s case.

In a recent Federal Court case Delise and Hall successfully argued that their client should not be compelled to attend a FCE. The Judge’s decision agreeing with the attorneys at Delise and Hall is significant in that it is the only widely reported decision in support of injured seaman resisting a defendants’ FCE. In fact the case was summarized in the most recent edition of a maritime and admiralty law textbook entitled Maritime Law Deskbook, 2011 edition.

Bobby Delise commented that it was “gratifying to have changed the law in this instance” and was especially pleased that the Judges opinion was selected for inclusion in the Maritime Law Deskbook, as it would be picked up by other attorneys representing injured seaman and “hopefully assist them in defending against unwarranted Functional Capacity Examinations.” The Courts decision can be found at Miller versus Chet Morrison Contractors, L.L.C., 2010 U.S. Dist. Lexis 64175 (E.D. La.2010)