— Iowa Lawyer, March 2003
Vocational rehabilitation consultants specialize in assessing disabled individuals’ limitations, and assisting those individuals in finding vocational alternatives. Given their unique training and experience, vocational rehabilitation consultants often play a critical role as expert witnesses. A vocational expert (VE) provides testimony regarding the scope and severity of vocational disabilities, including those caused by accidents that may be subject to claims for monetary damages.
The opinion provided by a VE is essential to forming an economic damages claim. Economic loss experts rely on the conclusions provided by the VE to calculate total lost earnings since the accident, as well as anticipated lost earnings for the remaining post-accident work-life expectancy.
Given the valuable support a VE lends to claims for damages, it is important for attorneys to understand the vocational evaluation process, and how they can apply that understanding to challenge a vocational prognosis.
Key points in challenging a VE
- Understand all opinions the expert is prepared to offer at trial
- Identify and analyze the foundation for each opinion
- Determine if the expert has the qualifications to offer such an opinion
- Explore the expert’s vocational evaluation
- Examine information regarding pre- and post-accident life
By consulting with their retained VE, counsel will be better prepared to assess the opposing expert’s report.
Qualifications
A VE typically holds a master’s degree in rehabilitation counseling or psychology, with a growing emphasis on the doctoral degree for personal injury cases. Training may include work in psychological counseling, job development and placement, vocational testing, labor market analysis, and working with individuals who have disabilities. The most respected professional certifications include:
- Certified Rehabilitation Counselor (C.R.C.)
- Certified Vocational Evaluator (C.V.E.)
- Certified Case Manager (C.C.M.)
- Certified Insurance Rehabilitation Specialist (C.I.R.S.)
The expert’s curriculum vitae (CV) and publication list will enable counsel to identify the expert’s qualifications. Counsel will want to obtain information relating to the expert’s education, licenses, certifications, training, teaching and writing experience, employment history, professional association membership, and litigation experience. Counsel may wish to consult with their retained VE on these matters.
Vocational Evaluation
To assess physical and mental capabilities a VE conducts an evaluation. Typical evaluations involve an oral interview and, if appropriate, written tests or tests of manual dexterity. During an interview the VE gathers information regarding employment and medical history, social and family background, education, military service, financial status, and recreational interests. The VE will also review records related to these matters, and possibly contact employers and/or medical professionals.
Following an evaluation the VE forms an opinion regarding the vocational disability. Salient issues involve whether the individual is:
- Capable of returning to the same career, performing the same duties, and the same pre-injury salary
- Capable of returning to the same career, performing the same duties, and the same pre-injury salary — provided the work environment is modified to accommodate the individual’s disabilities
- Capable of returning to the same career, but with different duties and lower salary
- Only capable of returning to a different career, with different duties and lower salary
- Not capable of returning to gainful employment ever again
The issues are similar in cases involving individuals who were in school, or who had not yet entered the workforce, at the time of their accident. The VE will determine pre-accident career goals, whether the individual was reasonably likely to achieve those goals, and whether the individual would have likely earned more compared to available post-injury jobs.
Counsel will want to explore the expert’s experience in administering vocational evaluations, with attention to the expert’s methodology. Was the evaluation thorough, and did the VE comply with their stated methodology? What records did the VE review? Which tests were administered? Did the VE identify the individual’s transferable skills? Counsel may also inquire whether the VE identified vocational alternatives or if they simply provided litigation support.
Pertinent facts regarding vocational disability include: age at the time of the accident; occupation at the time of the accident — including job title, duties, responsibilities and salary; occupations prior to the accident; educational history since the accident; medical conditions prior to the accident; medical conditions at the time of the vocational evaluation; and current medical conditions.
This information generally can be obtained from the expert’s report. Counsel would then be able to inquire about which facts the VE considered, or failed to consider. Counsel’s retained VE can provide valuable assistance in this regard.
Employment Information
Interviews with the individual’s co-workers and supervisors may provide information regarding performance, salary, and advancement potential. Employment information can also be obtained from Social Security and employment records. Job placement agencies provide an objective information source regarding general job requirements. For cases involving white-collar positions, “headhunters” are likely more helpful.
Records regarding scholastic performance and aptitude may prove valuable in cases involving the ability to re-educate, i.e., return to school to learn a new trade. Such records also prove useful in cases in which the individual had been in school at the time of the accident but is claiming an inability to fulfill educational and professional goals as a result of the accident.
Medical records are essential in a vocational evaluation. It may be worthwhile to request an independent medical examination (IME) and/or functional capacity evaluation (FCE).
Employment, education, medical, and military records may elicit transferable skills not identified, or perhaps downplayed, by the opposing VE. This information will enable counsel to challenge the foundation and reliability of the vocational assessment.
Earning Capacity
Once vocational disability is assessed, the VE will render a decision regarding reduced earning capacity resulting from the accident. Counsel may challenge the conclusion as well as the sources utilized to form the conclusion. In addition, counsel’s retained VE may be able to identify higher-paying vocational options than those identified by the opposing expert.
Work-Life Expectancy
In addition to challenging the opposing expert’s calculations, vulnerable points include assumptions regarding the individual’s ability to work into their later years. Work-life expectancy is contingent on the type of work performed, e.g., physically demanding versus sedentary. It is also influenced by pre-existing medical conditions. Post-accident changes may reduce earnings, e.g., relocating to a region where wages are lower.
Attempts to quantify post-accident work-life expectancy from work-life expectancy tables may be challenged on their reliability given that they characterize disabilities into broad categories, e.g., mildly disabled, severely disabled.
Conclusion
Vocational experts may prove vulnerable on several points: qualifications, education, methodology used to evaluate the disabled individual, resources utilized in forming opinions, and calculations determining future earnings loss. Counsel may benefit from the expertise provided by their retained vocational expert in identifying and analyzing weaknesses in opposing vocational expert’s testimony.
Bill Asenjo, Ph.D., C.R.C., is a vocational consultant in Iowa City. A certified rehabilitation counselor and vocational consultant since 1994, Bill completed his Ph.D. in the University of Iowa’s Rehabilitation Counseling program. A free list of specific questions for challenging vocational experts is available upon request. To contact Bill, visit
Resources
Vocational experts provide valuable support to claims for damages. Therefore, it behooves attorneys to understand the vocational evaluation process, and how they can apply that understanding to challenge a vocational prognosis. The following list — although not exhaustive, offers many of the most important, and commonly referred to, resources utilized by vocational experts.
Vocational Expert Resources
Dictionary of Occupational Titles (1991)
The official U.S. Department of Labor publication listing 12,741 discreet job titles.
The Occupational Information Network (O*NET)
http://online.onetcenter.org/
O*NETTM database is replacing the Dictionary of Occupational Titles (DOT) as the nation’s primary source of occupational information. O*NET is administered and sponsored by the U.S. Department of Labor’s Employment and Training Administration.
U.S. Department of Labor Bureau of Labor Statistics
http://www.bls.gov/
Occupational Outlook Handbook 2002-2003
The Occupational Outlook Handbook is a nationally recognized source of career information. Revised every two years, the Handbook describes what workers do on the job, working conditions, the training and education needed, earnings, and expected job prospects in a wide range of occupations. It is also available online at http://www.bls.gov/oco/.
America’s Job Bank
http://www.ajb.org/
One of the most comprehensive websites for occupational exploration and job searches.
U.S. Census Bureau
http://www.census.gov/
Iowa Workforce Development
http://www.iowaworkforce.org/
Social Security Administration
http://www.ssa.gov/
FedStats
http://www.fedstats.gov/