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Loss of earning capacity can be a major element of damages requiring the plaintiff and the defendant to retain vocational experts. Vocational experts can provide the court with important employment, salary, and earning information. The impact of a vocational evaluation will depend on the facts of each case. By asking vocational experts the right questions, attorneys can expose weaknesses in their reports and opinions. Here are six key questions to ask your vocational expert or an opposing vocational expert, and what you may learn from the answers.
- Did you meet with the injured party (or request to)?
Meeting with the injured party provides an opportunity to observe the person’s physical status, any pain manifestations, and any needed assistive devices or accommodations that may not be apparent from record review alone. The meeting also allows the vocational expert to verify and clarify biographical data, and collect additional information on education and work history to supplement information from documents. Using videoconferencing is a generally accepted method for conducting clinical interviews when the person and the vocational experts are in different cities, or due to social distancing restrictions.
- What evidence of past education, employment, and earnings have you reviewed?
For a comprehensive view of past employment and earnings, a vocational expert should not rely solely on an interview with the plaintiff. The expert should request and review documents, such as:
- Social Security earnings statements
- Tax returns with schedules and W2s
- Personnel files with performance evaluations
- Payroll records
- Secondary and post-secondary transcripts and school records
- Licenses or certifications
- Military personnel records
- Workers’ Compensation and Social Security disability claims files
These documents provide details on a person’s education, employment, and earning history. They should affect opinions on pre-event and post-event earning capacity.
- Have there been any gaps in the person’s employment history?
If there were major gaps in the plaintiff’s employment history after completing his or her education, they should be discussed in the vocational report. The gaps may indicate the plaintiff cannot consistently hold a full-time job. The vocational expert needs to understand why in developing opinions on pre-event and post-injury earning capacity. Gaps may be due to previous injuries or illnesses, personal choice, incarceration, lay-offs due to economic conditions, or terminations due to poor performance. Relevant documents include:
- Criminal justice records
- Personnel files, Family Medical Leave Act (FMLA) files
- Workers’ compensation claims files
- Social Security Disability Insurance application files
These files may show pre-event physical, cognitive, or legal impairments which may affect pre-event and/or post-injury earning capacity.
- What clinical experts did you consult with and what physical or cognitive impairments did you assume?
The vocational expert relies on physicians and psychologists for opinions on the plaintiff’s on-going impairments. The vocational impact of the injury on the plaintiff depends on the plaintiff’s specific physical and cognitive limitations. Some limitations have no impact on a plaintiff’s earning capacity in specific jobs. The impact of some limitations can be mitigated by assistive devices and accommodations. The vocational expert should have reviewed the medical records and any expert reports from clinicians. The vocational expert should also interview the clinical experts, when available, or provide deposition questions for opposing experts.
- Which vocational tests did you administer and what retraining, additional education, or assistive devices did you consider to increase post-injury earning capacity?
Combined with information on physical and cognitive impairments, vocational testing provides information on intelligence, aptitudes, and interests pointing to options for post-injury retraining and employment. Testing can be evidence of limited or no post-injury earning capacity. There are many vocational tests and it is appropriate to administer those that are relevant. Depending on an injured party’s age and academic attainment, retraining to enter the workforce in a different occupation may be appropriate. Vocational experts should 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 if there are assistive devices or reasonable accommodations that would allow the person to perform the pre-event job or increase the person’s range of job possibilities. If the vocational expert did not administer vocational tests, consider retraining, education, or accommodations they should be asked to provide a reasonable explanation for not doing so.
- Did you perform a transferable skills analysis and labor market analysis?
A transferable skills analysis (TSA) considers a person’s pre-event employment, skills, training, and any ongoing work restrictions to determine what jobs a person can perform without additional training. A TSA can identify employment possibilities would not have occurred to the vocational expert. The labor market analysis determines if specific jobs are available within a reasonable commuting distance. If the vocational expert did not conduct a TSA or labor market survey, they should be asked to provide a reasonable explanation for not doing so.
View RPC’s webinar on Sources of Data on Earnings and Work History for Personal Injury Litigation and learn how to obtain the data on the plaintiff’s past employment and earnings that is as complete as possible.
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