5 Questions to Ask Vocational Experts

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vocational experts

Vocational experts help plaintiffs and defendants by forming objective, evidence-based opinions about an injury victim’s employability and future earning capacity. To test the validity of those opinions, here are 5 questions that lawyers for a plaintiff or defendant should be prepared to explore with a vocational expert.

1. What documentary evidence did you review before forming your opinions?

Vocational experts begin their analysis of employability or lost earning capacity by comparing the work an injury victim was capable of performing before the injury to the work the victim is capable of performing now. Some of that information can be gleaned from interviews with the injury victim and his or her friends or family. Verifying and supplementing that information with a thorough document review is an essential part of producing reliable opinions.

Relevant documents that relate to past employment include position descriptions, records of job training, performance reviews, and discharge documents. Documents are particularly helpful when they itemize the physical demands of a job (such as the ability to lift 40 pounds twice an hour). When a former employer cannot provide documents that describe the physical demands of a job, a position description will often allow a vocational expert to identify the job’s physical demands by reviewing data compiled by the Bureau of Labor Statistics

Job training records are an excellent source of information when they explain the specific skills that an employee learned. Vocational experts use that information to determine whether the same skills could be transferred to other employment if an injury victim cannot return to a former job.

Educational records provide useful information about an injury victim’s earning ability. Earnings typically correlate with educational achievement and cognitive ability. A victim who dropped out of high school or who graduated with abysmal grades might have had the pre-injury earning capacity of a manual laborer. Standardized tests that show poor learning skills or limited motivation might also point to a lifetime of low earnings. On the other hand, an injury victim with good test scores, a post-high school education, and strong academic achievements might have been capable of earning a high income, even if the victim was interning or working temporarily in a low paying job when the injury occurred.

Records of vocational training in a trade school, career college, or vocational training program will help a vocational expert identify skills that might qualify an injury victim for future employment that differs from past employment. Military records can also help a vocational expert analyze transferrable skills. Military training in technical fields might enable an injury victim to find civilian employment in jobs that require knowledge or experience acquired in the military.

2. Did you conduct vocational testing?

Information about job history, education, training, and transferrable skills provides a solid foundation for a vocational expert’s opinions. A vocational expert can refine those opinions by conducting vocational testing.

Vocational testing offers insights into the injury victim’s intelligence, adaptability, interests, aptitude, motivation, and other factors that are relevant to employability. Vocational testing can also identify the kinds of retraining and rehabilitation that might improve an injury victim’s employability.

Many different kinds of tests fall under the umbrella of vocational testing. A vocational expert should select the tests that are relevant to the particular client and the particular injury that the client experienced.

3. Did you verify the reasons for the injury victim’s periods of pre-and post-injury unemployment?

From a plaintiff’s perspective, it is beneficial to show that the injury victim was able to earn significant earnings before the injury but can only earn a lesser amount because of the injury. From a defendant’s perspective, it is beneficial to show that the injury victim’s pre-injury earnings are inflated and that any reduction in earnings after the injury can be attributed to other factors.

To form a fair and objective opinion, a vocational expert must consider all relevant facts that have an impact on earnings before and after the injury. If a period of pre-injury unemployment resulted from pandemic layoffs or other economic circumstances beyond the victim’s control, or from the victim’s decision to quit a job to attend college, that period of unemployment might have little relevance to the victim’s pre-injury earning ability. If the victim was fired for incompetence or anger management issues, pre-injury unemployment might be very relevant to earning ability.

Similarly, post-injury unemployment might reflect an injury victim who is doing his or her best but simply can’t hold a job because of the injury. On the other hand, post-injury unemployment might be related to the failure to conduct a job search or other factors that are unrelated to the injury. A vocational expert will need to consider all possible explanations for unemployment to form an accurate opinion about the loss of earning capacity.

4. Did you review all medical records?

Attorneys might only furnish medical records that appear to help their case. Vocational experts who only see cherry-picked medical records can be blindsided on cross-examination. Experts who are questioned about records they never saw can be easily impeached.

Vocational experts should ask to see the victim’s entire medical chart. The expert should look for preexisting conditions that might offer an independent explanation of an inability to work. The expert should look for functional capacity evaluations that may have been performed before the injury to determine whether functional capacity changed after the injury. Psychological testing before the injury can also be relevant to opinions about work impairments that might be unrelated to the injury for which compensation is requested.

5. Did you perform a labor market analysis?

Some catastrophic injuries prevent an injury victim from doing any work at all. Less severe injuries, while disabling, might allow the victim to perform certain kinds of work, such as sedentary work that involves repetitive tasks.

When a victim is capable of working, it is important to define the kind of work the victim can do. The vocational expert should then conduct a labor market analysis to determine whether those jobs are available within the victim’s community (or other relevant geographic area). The failure to perform a labor market analysis undermines the expert’s opinions in all but the most serious injury cases.