How Does a Vocational Evaluation Benefit a Personal Injury Case?

Juries returning verdicts in personal injury cases can award economic damages. In addition to awarding past and future medical expenses and the cost of coping with a disabling condition, economic damages include the injury victim’s loss of earning capacity.

Catastrophic injuries or permanent disabilities impair the ability to earn future income. Vocational experts provide personal injury lawyers with objective, evidence-based opinions about future employability and loss of earning capacity. Their work generally begins with the preparation of a vocational evaluation.

What Is a Vocational Evaluation?

Vocational experts prepare vocational evaluations to assess employability and earning capacity. Earning capacity refers to the injury victim’s ability to earn income through work. The kind of work the injury victim is capable of performing, combined with the availability of such work and the wages paid in a particular geographic area, determines earning capacity.

A vocational evaluation defines the work that an injury victim can perform. Vocational evaluations follow a standardized methodology that might be adapted to the circumstances of the case. For example, when the personal injury victim is a minor, there may be no work history to assess. A vocational expert might need to place greater reliance on vocational testing to determine the minor’s potential work skills.

How Is a Vocational Evaluation Performed?

Vocational evaluations typically begin with a thorough review of relevant documents. Those documents include employment records, school transcripts, certificates of specialized training, military records, resumes, and other documents that pertain to work history or suitability for employment.

The document review also includes medical records. Functional capacity evaluations are of critical importance because they detail the physical and mental limitations that have an impact on the ability to work. A vocational evaluator will want to look at all available medical records to determine whether preexisting injuries affected employability before the accident, or whether functional limitations are all related to the accident.

The vocational expert will want to review documents with the client to make sure that the information in those records is accurate and complete. The client interview should dive into information that might be missing from documents. The expert will ask for details about past employment, including whether the jobs were satisfying or unpleasant, the reasons for employment terminations, the kind of work the client would like to do, whether the client would need additional education or training to perform that work, physical limitations that have an impact on working, and information about any job search the client has conducted.

Interviews with collateral sources supplement the document review and client interview as needed. Collateral sources might include the client’s friends and family, former employers, healthcare providers, and other people who have information that is relevant to the client’s employability.

After gathering relevant information, a vocational expert will typically perform vocational testing. The vocational expert chooses from one or more standardized vocational tests to assess the client’s aptitudes, interests, and abilities. Other tests offer insight into the client’s personality and suitability for different kinds of work.

Based on the document review, interviews, and vocational testing, the vocational expert will identify the client’s work skills, including transferrable skills that were not gained in prior employment (such as skills developed in military service). The expert will determine whether there are occupations that the client might pursue successfully, taking account of any limitations imposed by an injury or disability.

The final step before forming opinions and preparing a report is to conduct a job market survey. Using databases and personal research, the expert will survey the local labor market to determine whether jobs are available that the client has the ability and qualifications to perform.

The vocational expert will typically share a preliminary draft of an evaluation with the lawyer. The expert and/or lawyer might review that report with the client to assure its accuracy. Unless the lawyer identifies issues that need clarification, the expert will then prepare a final evaluation.

How Do Vocational Evaluations Help Lawyers Prove a Loss of Earning Capacity?

By comparing a plaintiff’s earnings prior to a disabling accident to the plaintiff’s post-accident earning capacity, personal injury lawyers prove can a key aspect of the economic damages that resulted from the accident. When earnings do not accurately reflect the plaintiff’s pre-injury earning capacity, the expert might be asked to evaluate the plaintiff’s earning capacity prior the accident.

Earning capacity differs from actual earnings. Most states allow injury victims to seek compensation for loss of future earning capacity rather than proving an actual loss of future earnings. The distinction is critical. Lost earnings must be established to a reasonable certainty. That standard may be impossible to meet. Juries can generally award any reasonable amount for loss of earning capacity, provided it has a foundation in the evidence, even if no precise amount can be proven with certainty.

When combined with a labor market survey, a vocational evaluation creates objective evidence of an injury victim’s capacity to earn income from work. The labor market survey allows the vocational expert to estimate the best wages that the injury victim is capable of earning in light of the vocational evaluation. Comparing post-accident earning capacity to pre-accident earnings quantifies the value of lost earning capacity.

Personal injury lawyers generally retain an economist to project that loss of earning capacity into the future, taking into account wage inflation and the victim’s work life expectancy. The economist can then calculate a present value of that lifetime loss, giving the jury an evidentiary basis for an award of lost earning capacity.

Depending on the outcome of the vocational evaluation, that calculation might be expressed as a high-low range. The jury would then base a verdict on its own prediction of the income the victim would have earned in the absence of an injury and the income that the victim will probably be capable of earning after the injury. Since the value of lost earning capacity does not need to be established with precision, a range of possible outcomes give the jury an evidentiary basis for deciding what the plaintiff really deserves.