Author
Michael Scullin, MHS, CRC, LRC, CVE, CLCP
Michael Scullin, MHS, CRC, LRC, CVE, CLCPConsultant

As certified rehabilitation counselors, we review and critique the vocational opinions of other certified rehabilitation counselors prepared for the plaintiffs in personal injury litigation. To do this we apply specific standards that are generally defined by information in the Rehabilitation Counselor’s Handbook,[1] in Vocational Assessment: Evaluating Employment Potential,[2] and best practices. This blog discusses common ways certified rehabilitation counselors may not adhere to these best practices. First, let me describe what should happen during a vocational evaluation and assessment.

A vocational evaluation and assessment is the basis for the vocational expert’s opinions. These opinions may include what jobs the person can perform, what accommodations the individual may need, whether the individual will benefit from more training or education, the availability of specific jobs where the individual lives, and what the expected wage is for those pre-injury and post-injury jobs.

According to best practices principles, vocational evaluators should use multiple methods, tools, and approaches to predict or estimate work behaviors and vocational potential. provide accurate vocational evaluations and assessments. Ideally, a complete vocational assessment includes a review of medical education, employment, and earnings records, consultation with treating physicians, a clinical interview with the injured person, vocational tests, a transferable skills analysis, and a labor market survey. Relevant records include academic transcripts, licenses and certifications, employment records, tax returns, and a Social Security Earnings Statement. Vocational assessments consider the injured person’s interests, aptitudes, physical capabilities, and work history. Behavioral observations of the individual during the interview and evaluation are important.

In determining post-injury earning capacity, one must consider the Return-to-Work Hierarchy. This hierarchy includes several options for a person returning to work, including:

  • Return to the same job with the same employer
  • Return to a different job with the same employer
  • Return to the same job with a different employer
  • Return to a different job with a different employer
  • Receive additional formal education or training[3]

The first step in determining which option in the Return-to-Work Hierarchy applies to an individual is to identify any permanent physical/mental/cognitive impairments from the injury. When the vocational assessment is performed because the person has been injured, the vocational expert should understand the physical and cognitive condition of the person before and after the injury. 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 physicians and psychologists to identify physical or cognitive impairments.

These clinical opinions 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. If the impairments make it impossible for the individual to return to the pre-event job, a vocational assessment is necessary to determine what jobs the individual can perform.

Based on the available information, the vocational expert will complete a transferable skills analysis (TSA) and a labor market survey (LMS). A TSA involves using data on the individual’s previous employment, education, and current physical restrictions are used to complete the TSA and to determine what jobs the individual might perform with a set of given work restrictions. The vocational expert conducts an LMS to determine the availability and wages of jobs the person can perform that are within the identified work restrictions.

Once this is complete, the vocational expert should be able to reliably establish the injured person’s pre-and post-event earning capacity. Earning capacity is defined as the expected earnings of a worker who makes choices to maximize what they expect to earn.[4] The vocational expert determines the individual’s pre-injury annual earning capacity and then determines the individual’s post-injury[5] annual earning capacity. The economic damages are the difference in the pre-injury and post-injury earning capacities.

At this point, the vocational expert hands his results to an economist to make various adjustment and calculate past damages and the discounted present value of future damages.

Having described what should happen during a vocational evaluation and assessment, here are common ways vocational experts may  not have followed the best practices.

  1. Incomplete or No Clinical Interview

A thorough clinical interview, when possible, is an important part of a vocational evaluation. A vocational interview lets the vocational expert observe the person, verify and clarify biographical data, and collect more information, such as vocational history, to supplement information from documents.[6] The vocational expert retained by the plaintiff usually has access to the plaintiff. With modern technology, there are few valid reasons a vocational expert hired by the plaintiff could not interview the plaintiff in person or virtually. Vocational experts hired by the defense usually do not have access to the injured party, and must rely on documentation, including the plaintiff’s deposition and interviews by the plaintiff’s retained experts.

a. Failure to Administer Vocational Tests.

When possible, a vocational expert may use vocational tests to measure the individual’s interests, abilities, and aptitudes. Standardized tests designed to measure the worker’s personality, academic ability, achievement levels, intelligence level, vocational aptitude, and vocational interests are widely used for diagnostic purposes with injured people and are valuable in assessing an injured person’s employment potential. These tests show the individual’s current capabilities and potential to increase earning capacity by completing further training or education to learn new job skills and qualify for more jobs within their medical limitations. Many generally accepted tests have validity measures to detect signs of intentional misrepresentation of skills and abilities.

If a vocational expert opines that an injured person cannot complete further training or education, or that their earning potential may be limited in any way, without vocational testing, the opinion may lack validity and reliability.

  1. Errors when Calculating Pre-Event Earning Capacity

For children or young adults who are still in school and have not formally entered the workforce, determining pre-injury earning capacity primarily involves analyzing the parents’ educational history and other household characteristics to project the plaintiff’s probable highest educational attainment. This information is then used with economic statistics to project wages.

For adults who have completed their formal education, determining pre-injury earning capacity involves analyzing the individual’s educational, employment, and earnings history. The pre-injury earnings history may support a conclusion on earning capacity, but earning capacity is not limited by past earning history. As part of the initial vocational interview, an accurate and detailed description of the injured person’s work and earnings history should be obtained. In addition, the vocational expert must request and review documentation, including employment records, tax returns, and a Social Security Earnings Statement.

Often, vocational experts base their opinions of someone’s pre-event earning capacity on the injured person’s average earnings from the five years preceding the index event, excluding the year of the event. The exception to that guideline is if the person’s demonstrated earnings show a consistent increase over the person’s work-life, then the highest year of earnings would represent their pre-event earning capacity. If it is not possible to follow these guidelines, the vocational expert should state that reason, then use available documents and best judgement to determine the most reasonable pre-event earning capacity. An opinion on pre-event earning capacity based only on the plaintiff’s subjective reports of earnings may lack reliability and validity. The same is true if the opinion is based on a single paystub on one W2.

Occasionally, vocational experts must rely on statistics of earnings from the Bureau of Labor Statistics. When necessary, it is best practice for vocational experts to use the median statistics for earnings, as opposed to the mean, or average. This is because the median wages are the true mid-point of the data set, while extreme high or low outliers can skew averages.

  1. Errors when Calculating Post-Event Earning Capacity

The process for calculating economic damages for a loss of earning capacity involves first determining the individual’s pre-injury annual earning capacity and then determining the individual’s post-injury[7] annual earning capacity. This element of economic damages is the difference in the pre-injury and post-injury earning capacities, adjusted to their discounted present value. Discussed below are the common ways vocational experts err when opining on post-event earning capacity:

a. Using Vague or Expired Work Restrictions

Treating doctors may opine in medical records that an injured person may not be able to perform “labor-intensive work” without further explanation A vocational expert should not rely on this sort of vague work restriction, and if they identify vague work restrictions in the records, should make every effort to consult the provider for an explanation. If they cannot consult the provider, the reason should be noted in the report. This is important because being restricted from labor-intensive work does not mean the person cannot perform any job and the injured person’s specific residual physical and cognitive abilities need to be identified, including, but not limited to, ability to lift, carry, stand, sit, walk, reach, stoop, squat, bend, kneel, crawl, climb ladders and stairs, drive, etc.

Additionally,  often in Workers’ Compensation cases, the treating doctor will provide specific restrictions that begin on a certain date and end on a certain date. If a vocational expert uses expired work restrictions without contacting the doctor to determine whether the restrictions are still valid, the vocational expert’s opinion may lack reliability and validity.

b. Neglecting to Consult Treating Providers

Part of a vocational evaluation is obtaining an accurate description of the injured person’s current medical status, including current treaters, current treatment, and current medication use. The vocational expert or the attorney should obtain a signed Health Insurance Portability and Accountability (HIPAA) release to let the vocational expert contact the treating providers. If the vocational expert is retained by the plaintiff, that vocational expert should have little difficulty speaking with treating doctors. However, sometimes treating doctors refuse to talk to the vocational expert at which point a consulting expert in the proper specialty should be retained and consulted.  It is outside the expertise of a vocational expert to determine impairments or their duration, severity, or impact on a person’s ability to perform a job. Thus, if a vocational expert opines that an injured person cannot work or can work, but with restrictions, based only on the self-reports of the injured party and their own judgment, the opinion may lack validity and reliability.

c. Neglecting to Complete a Transferable Skills Analysis (TSA) and/or Labor Market Survey (LMS)

Once specific return to work restrictions are identified and depending on a person’s age and length of work history, the Vocational Diagnosis and Assessment of Residual Employability (VDARE) process is often used to determine future earning capacity.[8] This process includes a Transferable Skills Analysis (TSA). Data on the individual’s previous employment, education, and current physical restrictions are used to complete the TSA and to determine what jobs the individual might perform. This process provides an objective basis for a vocational expert’s opinions on an injured person’s skills that may, or may not, transfer from past work to new work. Once the TSA is performed and transferable skills are identified, the vocational expert typically performs an LMS. The TSA may be done with and without consideration of accommodations, assistive technology, and additional training.

Unless the person has no future ability to work, is returning to a pre-event job, or is returning to a full-time job, the vocational expert also conducts a Labor Market Study (LMS) to determine the availability and wages of the jobs identified by the TSA It is a generally accepted practice in vocational rehabilitation to consider jobs within 35 road miles each way of the person’s residence if they live in a city, and up to 50 miles if they live in a rural area. Some jobs, such as truck driving, industrial construction, and oil field work may not have this limitation.

Available jobs are usually identified from online sources. Employers are sometimes contacted for more information. Potential jobs are not limited to only the jobs the person performed before, or at the time of the event. The vocational expert must also consider the possibility of training or education to qualify the person to perform a job if they cannot return to the pre-event job. The vocational expert should also consider reasonable accommodations or assistive devices that would let the person perform the pre-event job or increase the person’s range of job possibilities.

If a vocational expert opines that the injured person has no, or limited, transferable skills based only on their work history and the subjective opinion of that vocational expert, without having completed a TSA, that opinion lacks an objective basis and lacks validity. In the same vein, if specific work restrictions exist and a vocational expert that opines that the injured person has no residual earning capacity without performing a TSA or LMS, that opinion likely lacks a reasonable basis, as well.

In conclusion, the best practices described above help provide a reasonable basis for a vocational expert’s opinions. While the facts of each case may not necessitate the use of every one of these steps, vocational experts should, at minimum, evaluate the need for each step. If a particular step is not used, the vocational expert should explain why. As noted throughout this blog, if a vocational expert fails to provide a reasonable basis for their opinions, their opinions may lack validity and reliability.

[1] R. Weed and T. Field, Rehabilitation Consultant’s Handbook, rev. ed. (Athens, GA: Elliott and Fitzpatrick, 2001).

[2] Joseph E. Havranek, Timothy F. Field, and John W. Grimes, Vocational Assessment: Evaluating Employment Potential (Athens, GA: Elliott and Fitzpatrick, 2005).

[3] R. Weed and T. Field, Rehabilitation Consultant’s Handbook, 4th rev. ed. (Athens, GA: Elliott and Fitzpatrick, 2012), p. 51.

[4] Stephen M. Horner and Frank Slesnick, “The Valuation of Earning Capacity: Definition, Measurement and Evidence,” Journal of Forensic Economics 12, no. 1 (1999): 13–32.

[5] Post-injury earning capacity is occasionally referred to as residual earning capacity. These terms are synonymous.

[6] R. Weed and T. Field, Rehabilitation Consultant’s Handbook, rev. ed. (Athens, GA: Elliott and Fitzpatrick, 2001), p. 81.

[7] Post-injury earning capacity is occasionally referred to as residual earning capacity. These terms are synonymous.

[8] Joseph E. Havranek, Timothy F. Field, and John W. Grimes, Vocational Assessment: Evaluating Employment Potential (Athens, GA: Elliott and Fitzpatrick, 2005).

To learn more, contact Michael Scullin, MHS, CRC, LRC, CVE, CLCP. To discuss a case, contact Athenna Dill, CPC, Personal Injury Case Manager at 512.371.8005 or adill@rpcconsulting.com.

Learn More About RPC’s Vocational Evaluations and Expert Services HERE