The Plaintiff’s Vocational Evidence in Workers Compensation
Maria Vargas, MS, CRC, CLCP
Ken Franconero, Attorney at Law
Vocational rehabilitation consultants (VRCs) can be utilized as vocational experts (VEs) by attorneys in a wide range of employment-related litigation, such as workers’ compensation, wrongful termination and the Americans With Disabilities Act (ADA). The role of a VRC can be two-fold:
- VRCs can be used strictly for consultation when an attorney seeks review for professional opinions, examination of an opposing expert’s report/testimony or evaluation of the merits of a case.
- VRCs also can be used as a vocational expert witness to provide an opinion and testimony in litigation. Like any testifying expert, a VE could examine file information, draw conclusions based on this information, and testify at deposition or trial.
When is a vocational assessment necessary in a workers’ compensation case?
Regardless of jurisdiction, most workers’ compensation laws have provisions which address the use of vocational assessments in determining an injured worker’s post-injury ability to work. Injured workers are entitled to either total or partial wage loss based upon their ability to return to work.
- Permanent Total Disability. Where the injured worker is completely disabled, then a vocational assessment can establish that there are no jobs in the open market which can accommodate the injured worker’s post-injury abilities.
- Permanent Partial Disability. Where the injured worker can return to work, but earns less than before, a vocational assessment can establish the injured workers’ loss of wage earning capacity, based upon his work injuries, and why they he/she cannot do the same work as before the injury.
How can a vocational expert determine an injured worker’s residual earning capacity?
In determining permanent workers’ compensation benefits (i.e. TPD, PTD) most workers’ compensation laws require evidence identifying the claimant’s education and skills. Then those skills are applied to prospective jobs in the open market which accommodate the worker’s permanent physical restrictions.
Vocational experts are specifically trained to conduct a Transferrable Skills Analysis, and to identify jobs using the Dictionary of Occupational Titles (“DOT”) and data on the local job market.
Most vocational experts have a graduate degree in vocational rehabilitation or vocational counseling and hold one or more nationally recognized certifications in the field such as Certified Rehabilitation Counselor (CRC), Certified Disability Management Specialist (CDMS) or member of the American Board of Vocational Experts (ABVE). The coursework and training of the VRC focuses on understanding the effect that various types of disabilities have on employability, assessment of an individual’s skills in the area of work, labor market research to determine the types of jobs one can do, and job placement of individuals assessed.
Many state and Federal laws have specific guidelines for establishing permanent wage loss claims. For example, DFEC, which manages Federal workers’ compensation claims, has specific guidelines for identifying transferrable skills using DOT. Likewise, the Longshore Act and Defense Base Act vest the Judge or District Director with discretion to determine an exact residual earning capacity. See 18 USC Sec. 908(h). This law has been interpreted in the case law to require the fact-finder to consider vocational evidence in the form of a functional skills analysis and labor market survey, in order establish evidence of the residual wage-earning potential.
How Is Residual Earning Capacity Established?
The first step in a vocational assessment is to identify any transferrable skills, the worker may have. These are identified using the claimant’s education and work history, and non-work-related skills and hobbies. These transferrable skills should be analyzed using the DOT classification of jobs.
These transferrable skills include both “hard” work skills, which require particular training and experience (I.e computer skills, trade skills), as well as “soft” skills, such as communication, problem solving, and time management.
Soft skills are often overlooked by defense counsel, when identify jobs for the injured worker. Clerical, customer service, and retail jobs are often identified by defense experts as reasonable alternative employment. However, these types of jobs often require significant soft skills, which the injured worker never demonstrated before. Many general laborers lack these soft skills to realistically be marketable on the open market. In our current service economy, soft skills such as processing customer complaints, problem solving, prioritizing tasks, and adaptability, are fundamentally necessary to perform the job.
For example, a worker who has been trained in performing same job repetitively day after day, with little variation of job tasks, such as a crane operator or barge worker, may be ill-equipped to work even an entry level customer service or retail job. They may not be able to think flexibly or communicate effectively with customers. This may make them ineligible for jobs such as a rental car assistant or hotel desk worker.
Computer skills are can often be a complex “hard” skill, when the worker needs to use computers in a fast-paced job. Just because a worker can use a personal computer at home, or sporadically used a computer terminal at his previous job to input data, does not necessarily establish that he can use a computer continuously on as his/her primary job tasks.
Such computer-based jobs often require tangential job tasks which require additional experience and skills. These additional tasks often include processing credit card payments, regularly dealing with customers, answering/transferring phone calls, and quick decision-making. Most of the time, workers need to bring these skill sets to the job. Even whenn a prospective employer offers to train, the offer only applies to training pertaining to the employer-specific or industry-specific parts of the job.
Once the claimant’s transferrable skills are clearly defined, then, and only then should the fact finder consider jobs in the open market which match those skills.
How Are Jobs Identified in the Open Market, and are they Truly Available?
Vocational experts will perform a labor market survey, which matches the worker’s skill sets to available jobs in the open market. In a workers’ compensation case, the jobs identified are often inappropriate for the worker.
A prospective employer will often understate tasks when they provide a job description. For example, there are fewer prospective jobs involving untrained, sedentary work. Many jobs are labeled as management jobs or supervisor jobs, implying that there is no physical requirement. In reality, it is rare for such a management level person be at a desk or not expected to participate in some physical aspect of the work. “Working supervisor” is the norm rather than the exception, as the manager is responsible for getting the work done, even if a lower level employee doesn’t show up for work. Usually, they are required to work alongside their coworkers, sharing in the physical labor.
Similarly, it is unrealistic for someone to immediately be offered a supervisor position, even if they have the requisite skills and experience for the job. Supervisory jobs are generally obtained through “working their way up” the company ladder. So, as a new employee, it would be exceedingly rare if not impossible to be hired on with a new employer, with no prior supervisory experience, into a management role. Also, a supervisor needs people skills, time management, project planning, ability to delegate, and financial management skills.
Why is a detailed description of the injured worker’s physical limitations necessary?
Most physicians are trained to treat injuries, rather than considering functional abilities once injuries become permanent. Once the claimant reached MMI, few doctors ask questions about their level of functioning. Instead, it is more common that the doctor will address only once aspect of the residual functioning, such as a lifting limitation. Or they may offer an insufficient opinion that the claimant can perform light or medium-level work.
If a Functional Capacity Evaluation (FCE) was performed, this may be more helpful. However, FCEs very frequently overestimate the injured worker’s abilities and understate limitations. Physical therapists tend to use the highest work classification they can perhaps due to a lack of understanding of the physical demands levels as outlined by the DOT.
In the battery of FCE tests, the injured worker may have lifted up to 50 pounds on several different tests, but was rated as being able only occasionally to walk or stand. The physical therapist would classify their capabilities at medium, because the ability to lift places them in the medium physical demand category of work. However, the worker’s walking and standing restrictions would make the medium-level lifting restriction irrelevant for prospective jobs. Considering the workers’ physical abilities in their totality, and not merely based upon lifting ability, makes a huge difference in identifying eligible jobs.
The claimant’s overall treatment and lifestyle post-injury may pose challenges which are not reflected in an FCE. For example, may workers have long-term opioid medications as part of their permanent care. Many employers have mandatory drug screenings for employees and applicants. Most employers would be hesitant to employ an individual on a number of narcotic, pain medications since these can affect cognition, judgment and safety in the workplace. If the claimant has driving restrictions, this may make him ineligible jobs which are distant from his home.
Furthermore, a vocational expert can consider other barriers for employment for specific industries, which go beyond training and physical abilities. For example, in Defense Base Act cases, re-employability in the government contractor industry often requires a background and security screening, which an injured worker may not be able to pass. These jobs also have irregular or overlong work hours, which may beyond the claimant’s physical abilities, or are contraindicated by the workers’ medical needs to take certain medications at night or have good sleep hygiene.
In the current job market, in which unemployment is down and jobs seem abundant, it is more important than ever to challenge over-optimistic defense opinions about re-employability.
To establisha worker’s residual work abilities after an injury, a vocational assessment can be an important and valuable tool to provide a realistic and fair picture of the workers’ future prospects of employment.
Such a claimant’s expert can establish evidence of total disability. Where there is a residual earning capacity, and the worker’s goal is return to work, an expert can help the worker with directing his job search and providing hope of future employability. The expert can help the employee focus a job search for opportunities which best match their skills and residual physical functioning.