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In personal injury litigation, a vocational evaluator is often asked to determine a person’s future earning capacity after an accident or injury. If physical or cognitive impairments prevent the person from returning to his or her pre-injury job, the vocational evaluator should determine if there are other jobs the person can perform. One step in that determination is to identify any transferable skills the individual may have. Evaluators identify transferable skills by conducting a Transferable Skills Analysis (TSA). Every individual has transferable skills from past education or jobs that can be used in other jobs. Experience from past jobs can qualify the person for other jobs with the same or other employers.[1]
Prior to the TSA, the evaluator will consider the person’s post-injury physical and cognitive limitations and eliminate possible jobs inconsistent with those limitations.[2] If the evaluator administers vocational tests to measure aptitudes, reasoning, math, and language skills, the test results can increase or decrease the range of possible jobs.
The evaluator begins the TSA by using the US Department of Labor’s Dictionary of Occupational Titles (DOT) to identify occupations the person previously held. The evaluator lists the work activities (work fields) the person performed in previous jobs, and the materials, products, subject matter, and services (“MPSMS”) the person used in those jobs. Vocational test results are then applied to expand or reduce the list of possible jobs. The evaluator applies the person’s physical and cognitive limitations to eliminate jobs the person cannot reasonably be expected to perform.
The completed TSA presents a list of jobs the person can reasonably be expected to perform with the limitations from the injury that is the subject of the litigation. A TSA identifies jobs a person can do with no additional formal education or training. A TSA gives the evaluator a more solid and reasonable basis for opinions on the person’s post-injury residual employability and earning capacity.[3]
Computer software is available to assist evaluators in conducting a TSA. RPC evaluators use SkillTRAN, an internet-based software service.[4] RPC also uses the print and online versions of the Dictionary of Occupational Titles,[5] The Transitional Classification of Jobs,[6] and the New Guide for Occupational Exploration.[7] The SkillTRAN software compares the injured person’s information, supplied by the evaluator, with thousands of occupations. The program organizes possible jobs into these categories:
- Directly Transferable Occupations are those which share at least one of the three-digit work fields known from the individual’s past work history and which have at least one of the same three-digit MPSMS codes from past jobs. Directly transferable occupations have primary job duties similar to past work, and a new occupation would involve little or no learning of job duties.
- Closely Transferable Occupations are in combination work fields (which involve multiple work technologies) and have at least one of the same three-digit MPSMS codes from the individual’s past work history. The worker may need to learn a few job duties.
- Generally Transferable Occupations share at least one of the two-digit work fields from the individual’s past work history and have at least one of the two-digit MPSMS fields from the past. Two-digit coding by work and MPSMS clusters occupations into generally related groups that may not share the same specific skills as the worker developed in the past. Some learning of essential job duties is likely to be necessary.
- Directly Related Occupations share at least one of the three-digit work fields known from the individual’s past work history but could involve any kind of MPSMS. The worker should anticipate some moderate to significant on-the-job training. Formal training may be necessary for some occupations.
- Generally Related Occupations share at least one of the two-digit work fields known from the individual’s past work history but could involve any kind of MPSMS. The worker should anticipate significant on-the-job or formal training.[8]
Not all the potential jobs will be available where the injured person lives. The evaluator performs a labor market survey to determine the availability of specific jobs at the time of the evaluation. The evaluator lists these jobs in a report with information on each job’s physical demands and median wages in that labor market. These data are the basis for the vocational evaluator’s opinions on the injured person’s post-injury employability and earning capacity.
Conclusion
People are not permanently and totally disabled just because they cannot return to their pre-injury jobs. The injured person has a responsibility to mitigate damages by doing what jobs he or she can, even if the post-injury job pays less than the pre-injury job. Whether the vocational expert is retained by the plaintiff or the defendant in personal injury litigation, he or she should conduct a thorough vocational evaluation. Unless physical or cognitive impairments make it impossible for the injured person to work, the evaluation should include a TSA.
[1] Jasen Walker, “The Importance of Testing in Forensic Vocational Disability Assessments,” The Rehabilitation Professional 19 (Jan. 2011): 11–16.
[2] United States Employment and Training Administration, The Revised Handbook for Analyzing Jobs (Athens, GA: Elliot & Fitzpatrick, 1991), https://skilltran.com/index.php/support-area/documentation/1991rhaj.
[3] Roger O. Weed and Timothy F. Field, “Transferable Skills Analysis,” chap. 6 in Rehabilitation Consultant’s Handbook, 4th ed. (Athens, GA: Elliott & Fitzpatrick, 2012), 89–112.
[4] SkillTRAN, LLC, 1998–2019, http://www.skilltran.com.
[5] Information Technology Associates, “Dictionary of Occupational Titles,” http://www.occupationalinfo.org/ Dictionary of Occupational Titles, originally published as US Department of Labor and Employment and Training Administration, Dictionary of Occupational Titles, vol. 2, 4th rev. ed. (Indianapolis, IN: JIST, 1991).
[6] Janet E. Field and Timothy F. Field, The Transitional Classification of Jobs: A Bridge between the Dictionary of Occupational Titles and the O*NET Database with Suggestions for Transferable Skills Analysis and Employability (Athens, GA: Elliot & Fitzpatrick, 2004).
[7] Michael J. Farr and Laurence Shatkin, New Guide for Occupational Exploration: Linking Interests, Learning, and Careers (Indianapolis, IN: JIST, 2006).
[8] “Transferable Skills Analysis Defined,” SkillTRAN, https://skilltran.com/index.php/support-area/documentation.