Author
Hiral Patel, MHS, CRC, CVE
Hiral Patel, MHS, CRC, CVEConsultant

Lost earnings and lost earning capacity can be major elements of economic damages in personal injury litigation. Calculating these elements requires determining pre-injury and post-injury earnings and earning capacity. These determinations involve vocational and economic issues. If there are disputes whether the plaintiff can return to work at all, or to what job, or with what limitations or accommodations, a vocational evaluation by a qualified vocational expert can be essential in determining this element of damages.

A vocational evaluator is trained to conduct vocational assessments and assist individuals in identifying suitable jobs and career paths. The evaluator may have a degree in vocational evaluation, vocational rehabilitation, psychology, or counseling. Some vocational evaluators earn certifications such as Certified Rehabilitation Counselor (CRC), or Certified Vocational Evaluation Specialist (CVE), from organizations such as the Commission on Rehabilitation Counselor Certification.[1]

There are six elements in a personal injury vocational evaluation:

  1. The clinical interview with the injured party
  2. The interview with the treating or consulting physician(s)
  3. Vocational testing
  4. Transferable skills analysis
  5. Labor market survey
  6. The vocational evaluation report

(1) The Clinical Interview with the Plaintiff

A clinical interview allows the vocational expert to observe the injured person, verify and clarify biographical data, and collect additional information, such as vocational and educational history, to supplement information from documents. The evaluator gathers documentation of the injured person’s demographic information, medical history, education history, work history, work and life experiences, vocational goals, and current limitations. Vocational experts retained by the defendant may not be permitted to interview the plaintiff and may have to rely on the plaintiff’s deposition and interviews conducted by the plaintiff’s experts.

(2) Interviews With Treating and Consulting Physicians

When a vocational evaluation is performed because the person was injured, the vocational expert should understand the person’s physical and cognitive condition before and after the injury. The clinical conditions include any impairments, their effect on the person’s functional abilities, whether they are permanent, and options to mitigate the effects on the person’s functional abilities. It is outside the expertise of a vocational evaluator to make these medical determinations. The vocational expert does not offer opinions on the person’s physical or mental condition or impairments, but relies on medical records and on consultation with treating or consulting physicians and psychologists to determine any temporary or permanent impairments.

(3) Vocational Testing

A vocational evaluator often uses vocational tests to measure an individual’s interests, abilities, and aptitudes. Standardized tests designed to measure personality, academic ability, achievement levels, intelligence level, vocational aptitude, and vocational interests are widely used for diagnostic purposes. These tests are valuable in assessing an injured worker’s employment potential. Test are available in several languages and should be administered in the plaintiff’s primary language or through an interpreter.

These are typical vocational tests:

  • CareerScope Assessment – CareerScope Assessment is a self-administered, computerized, timed assessment that takes most people 30–45 minutes to complete. CareerScope has components to measure and identify a person’s aptitudes and interests.[2]
  • Wide Range Achievement Test- 5th edition (WRAT5) – Wide Range Achievement Test- 5th edition (WRAT5) measures a person’s basic academic skills in reading, spelling, math computation, and sentence comprehension.[3]
  • Slosson Intelligence Test fourth edition (SIT-4) – Slosson Intelligence Test fourth edition (SIT-4) provides a quick, reliable index of intellectual ability.[4]

Career Occupational Preference System Interest Inventory (COPS) – Career Occupational Preference System Interest Inventory (COPS) measures an individual’s level of interest in each of the 14 COPSystem VIA Career Clusters. This 20-minute survey is used to explore career interests based on likes and dislikes. The COPS Interest Inventory emphasizes a proactive approach to career exploration, featuring career and educational planning, along with listing suggested activities to gain experience.[5]

  • Kaufman Brief-Intelligence Test 2 (K-Bit2) – Kaufman Brief-Intelligence Test 2 (K-Bit2) is a brief, individually administered measure of verbal and nonverbal intelligence.[6]

Vocational experts retained by the defendant may not have the opportunity to administer tests. If the plaintiff’s expert has administered tests, the defendant should obtain all documents related to the test results to determine their reliability.

(4) Transferable Skills Analysis

If physical or cognitive impairments prevent the plaintiff from returning to his or her pre-injury job, the vocational evaluator should determine if there are other jobs the person can perform. The evaluator identifies possible jobs by conducting a transferable skills analysis, or “TSA.” It gives the evaluator a more solid and reasonable basis for opinions on the person’s post-injury residual employability and earning capacity.

The evaluator uses the US Department of Labor’s Dictionary of Occupational Titles (DOT) to identify jobs the plaintiff has held. The evaluator lists the work activities (work fields) for those jobs and the materials, products, and services (“MPSMS”) the plaintiff used in those jobs. Vocational test results and the plaintiff’s physical and cognitive limitations are entered into the TSA software to identify jobs the plaintiff can’t reasonably be expected to perform.

RPC evaluators use SkillTRAN, an internet-based software service.[7] RPC also uses the print and online versions of the Dictionary of Occupational Titles,[5][8] The Transitional Classification of Jobs,[6] [9]and the New Guide for Occupational Exploration.[7][10] 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 Occupationsare 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 Occupationsare 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 Occupationsshare 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 Occupationsshare at least one of the three-digit work fields known from the individual’s past work history but could involve any kind of The worker should anticipate some moderate to significant on-the-job training. Formal training may be necessary for some occupations.
  • Generally Related Occupationsshare at least one of the two-digit work fields known from the individual’s past work history but could involve any kind of The worker should anticipate significant on-the-job or formal training.[11]

A TSA identifies jobs a person can do with no additional formal education or training. The vocational tests identify the plaintiff’s potential for more education or training. The vocational evaluator may perform the TSA with different assumed education or training to see how education or training may affect future earning capacity.

(5) Labor Market Survey.

Just because the plaintiff could perform a job does not mean that job is available where the plaintiff lives. A labor market survey identifies jobs and job openings in the plaintiff’s geographic labor market. The labor market is defined as 30 driving miles from a person’s residence in urban areas and 50 driving miles in rural areas. The labor market survey gives the vocational expert a solid basis to opine on post-injury earning capacity by providing evidence if relevant jobs are currently available in the plaintiff’s labor market.

The vocational evaluator bases the labor market survey on job openings published online by job placement services and individual companies. The survey may include telephone calls to companies for additional information on wages and benefits or on specific job duties. The survey results show the availability of the jobs the TSA showed the plaintiff can perform and shows the wages and benefits for those jobs.

(6) The Vocational Evaluation Report

The vocational evaluator uses information from the first five elements to formulate opinions and prepare an expert report on the injured person’s pre-injury and post-injury earning capacity. The report may include a rehabilitation plan to maximize post-injury earning capacity. The rehabilitation plan may include education or training, assistive devices, and home or vehicle modifications. The plan should note any accommodations the plaintiff will require from the employer for specific jobs. The vocational report gives an economist a reasonable basis for calculations and opinions on lost earnings and lost earning capacity due to the injury that is the subject of the litigation.

RPC’s certified vocational evaluators prepare comprehensive vocational evaluations and analyze the work of opposing vocational and economic experts. Our economists use the vocational reports to develop opinions on lost earnings and lost earning capacity. You can find more information on our staff and services on our website: www.rpcconsulting.com, or call us to discuss a case at (512) 371-8000.

Research and Planning Consultants, a complete team of damages experts for personal injury litigation.

[1] Commission on Rehabilitation Counselor Certification, accessed https://crccertification.com/

[2] https://vri.org/

[3] https://www.wpspublish.com/wrat5-wide-range-achievement-test-fifth-edition?utm_term=wrat5&utm_campaign=Search+%7C+Development+%26+Adaptive+Behavior+-+Champion&utm_source=adwords&utm_medium=ppc&hsa_net=adwords&hsa_tgt=kwd-635571627960&hsa_ad=405939247091&hsa_acc=6243382947&hsa_grp=69507104874&hsa_mt=e&hsa_cam=1687564766&hsa_kw=wrat5&hsa_ver=3&hsa_src=g&gclid=Cj0KCQjw2NyFBhDoARIsAMtHtZ57WvNsJQsYTvM5pQ4nttw3zldyz0BiClN-ILzu3NV3-d0HcqtP2HMaAmb8EALw_wcB

[4] https://www.wpspublish.com/sit-4-slosson-intelligence-test-4th-edition

[5] https://www.edits.net/via/interests/

[6]  Alan S. Kaufman and Nadeen L. Kaufman, Kaufman Brief Intelligence Test, Second Edition Manual (Bloomington, MN: Pearson, 2004), p. 1.

[7] SkillTRAN, LLC, 1998–2019, http://www.skilltran.com.

[8] 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).

[9] 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).

[10] Michael J. Farr and Laurence Shatkin, New Guide for Occupational Exploration: Linking Interests, Learning, and Careers (Indianapolis, IN: JIST, 2006).

[11] “Transferable Skills Analysis Defined,” SkillTRAN, https://skilltran.com/index.php/support-area/documentation.

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