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The role of a vocational expert in personal injury litigation is to determine the pre-injury and post-injury earning capacity of the plaintiff. To determine the post-injury earning capacity, the vocational consultant answers several questions:
- What is the plaintiff’s education, training, and work experience?
- What are the plaintiff’s post-injury physical and cognitive abilities and limitations?
- What jobs can the plaintiff perform (a) with or without more education or training, (b) with assistive technology, and (c) with reasonable accommodations?
- Are openings for jobs the plaintiff can perform available in a reasonable commuting radius from the plaintiff’s residence?
A labor market survey is a tool used by vocational experts to answer the last question. The labor market survey identifies the jobs and job openings in the worker’s geographic labor market. The labor market survey provides evidence specific jobs are available for the plaintiff, and sometimes proof of the wages and benefits for those jobs.
RPC conducts labor market surveys using a consistent methodology:
- List the relevant jobs based on the plaintiff’s residual capabilities, work experience, and the transferable skills analysis (TSA).
- Define the plaintiff’s labor market based on a reasonable commuting radius, depending on whether the plaintiff lives in an urban area (35 miles) or a rural area (50 miles). Some jobs (e.g., interstate truck driver) may not depend on place of residence.
- Use internet resources to find job openings in the plaintiff’s labor market. A job opening is an advertised job accepting applications. Internet resources include popular job search websites such as Indeed, CareerBuilder, Google Jobs, etc., and other sites such as LinkedIn, State Workforce Commission websites, classified ads, job flyers, government or city job pages, and company career pages.
- Assess each advertisement and consider only those the plaintiff can reasonably be expected to perform. For those that pass the screening, the vocational expert considers these factors:
- The minimum required education and experience;
- The physical demands of the specific job;
- The availability of assistive technology and reasonable accommodations;
- The location of the job;
- The pay and benefits.
- Document each relevant job opening by printing the posting and other information on the job and employer, with the date viewed. The printed material on all relevant jobs becomes an attachment to the vocational expert report.
When appropriate, RPC telephones employers for additional information, such as the physical requirements of the job, minimal experience, or educational requirements, or to inquire about the availability of specific accommodations. RPC prepares a contact memo to attach to the report with the date of the call, the phone number, the name and title of the person contacted, and any other relevant information.
Labor market surveys are a valuable and reliable source of information in a vocational assessment. A TSA may identify jobs that are no longer available in the plaintiff’s labor market. The labor market survey gives the vocational expert a solid basis to opine on post-injury earning capacity by providing evidence that relevant jobs are currently available in the plaintiff’s labor market. The method described in this post is generally accepted among vocational rehabilitation counselors and forensic vocational experts.
Resources:
Weed, Roger O., and Timothy F. Field. “Labor Market Survey.” Chap. 7 in Rehabilitation Consultant’s Handbook, 113–120. 4th ed. Athens, GA: Elliott & Fitzpatrick, 2012.