When an injury causes an impairment that compromises the victim’s ability to earn a living, lawyers seek damages for loss of earning capacity. Lawyers retain vocational experts provide opinions about the victim’s ability to return to former employment. Vocational experts also provide opinions about jobs that the victim would be capable of performing in the labor market and the wages associated with those jobs.
In addition to offering evidence regarding loss of earning capacity, lawyers who represent disabled injury victims will often present the expert testimony of a life care planner. That testimony focuses on the future cost of coping with a disability.
Vocational experts do not testify in a vacuum. They base their testimony in part on the findings made by medical experts. Lawyers may also retain an expert economist to calculate the present value of future expenses. Under the guidance of the personal injury lawyer, the experts work together to help a jury assess future economic damages.
The expert evidence in an injury case typically begins with the medical testimony. A treating physician who testifies about the care provided for injuries might testify as a fact witness rather than an expert witness. When a treating physician offers opinions that the expert formed while treating the injury victim — opinions about the victim’s prognosis or need for future care — the physician may be classified as a non-retained expert or a “hybrid witness” (both a fact witness and an expert witness) depending on the jurisdiction in which the expert testifies.
If a treating physician has not done so, a lawyer may retain a medical expert for the specific purpose of evaluating the victim’s functional capacity. A functional capacity evaluation is an assessment of the victim’s health status and the condition of the victim’s bodily structures and functions. Functional capacity evaluations offer important information about the injury victim’s ability to lift, bend, sit, stand, twist, climb, kneel, push, pull, crouch, stoop, crawl, walk, and run. A functional capacity evaluation might also assess the victim’s grip strength and hand dexterity, including the ability to grasp large and small objects and manipulate fingers.
Functional capacity evaluations often assess pain and endurance. An injury victim might be able to sit in relative comfort for a few minutes but prolonged sitting may become increasingly painful. Each activity that the evaluator assesses might produce a degree of tolerable pain that becomes intolerable after a certain length of time.
Vocational Expert Assessment
Vocational experts rely on functional capacity evaluations as part of a larger constellation of facts that inform their expert opinions about the kind of work an injury victim will be able to perform. The ability to work is a function not just of functional limitations, but of education, job history, experience, age, and other factors that have an impact on employability.
Vocational experts assess work capacity to determine whether the injury victim can return to former employment. If not, they determine whether the victim can be employed in another occupation. That assessment requires a comparison of the physical demands of work and the victim’s functional ability to perform that work.
Vocational experts depend on reliable sources of information when they decide whether jobs exist that are consistent with the limitations defined by a functional capacity evaluation. The Dictionary of Occupational Titles is a standard reference created by the Department of Labor to define the physical abilities that are required to perform more than 13,000 kinds of jobs. Vocational experts rely on a variety of sources, including the Dictionary of Occupational Titles and its successor, the Occupational Information Network, to determine the kinds of work that an individual with the injury victim’s unique attributes can perform.
The rules of evidence governing expert testimony generally allow experts to base opinions on information that is commonly relied upon by other experts in the same field. Courts recognize that vocational experts rely on medical records and functional capacity evaluations to form an opinion about an injury victim’s limitations. They rely on standard references to determine the physical abilities required to perform different jobs.
They then turn to labor market surveys and their own research to determine whether those jobs exist within a particular geographic area and, if so, the wages that those jobs commonly pay. By comparing the wages earned in former employment to wages that can be earned in future employment, vocational experts follow a methodology that allows them to express reliable opinions about the disabled injury victim’s loss of earning capacity.
Life Care Planner Expert Opinions
Like vocational experts, life care planners use reliable, standardized methodologies to arrive at expert opinions that courts will admit into evidence. Life care planners determine the cost of meeting the current and future needs of disabled injury victims.
Life care planners begin with the same data that vocational experts use. They review medical evidence, including functional capacity evaluations, to establish the limitations that are imposed by disabilities. Their focus, however, is not on the impact of limitations on future employment, but on the burden of coping with those limitations.
Life care planners conduct a thorough investigation to determine the financial burden of coping with disabilities in a way that will allow the injury victim to have a life that is similar in quality to the life the victim would have enjoyed if the disability had not occurred.
Life care planners assess the medical and nonmedical needs that must be met to make the victim whole. Those needs may range from a lifetime of wheelchair replacements to remodeling a home to make it accessible to the disabled victim. Expert life care planners determine the cost of meeting a victim’s needs by consulting with healthcare workers, reviewing medical records, interviewing the injury victim and his or her family members, and researching a variety of databases that provide estimates of relevant costs.
The final damages expert that lawyers might use to prove future economic damages is an economist. Most jurisdictions require the value of future losses and expenses to be reduced to present value. Economists perform that calculation by determining the amount of money that must be invested today to equal the injury victim’s lifetime needs and losses.
Some jurisdictions place the burden on the defense to discount future damages to present value. Regardless of where the burden lies, an economist will need to arrive at and justify both an appropriate discount rate and an inflation rate. They begin, however, with the projections they receive from the vocational expert and life care planner that the attorney has retained to estimate future damages.