Understanding the Vocational Expert’s Damage Report in Personal Injury Cases
Many personal injury attorneys realize that a Vocational Expert is important in properly building the house of damages, but do not know if they have received a comprehensive report.
Below is an outline of the items that should be included in a detailed and thorough Vocational Expert Damage Report .
1) Did the employability expert actually examine the plaintiff?
Evaluations can be conducted through an in-person interview, a Skype Video Conference, or via records review. It is important that the Vocational Expert attempt to visually evaluate the Plaintiff whenever possible. The first thing an attorney should note when they read a vocational report is whether or not the expert conducted a thorough examination of the plaintiff.
2) The expert should set out the methodology followed in performing their evaluation.
Was the methodology peer-reviewed and is it generally accepted by other Vocational Experts in the field? It is amazing that most employability expert reports are missing this important information, which opens the expert’s opinions to a Daubert challenge. The expert should discuss any assumptions they have made in reaching their opinions.
3) Overview of the medical, legal, and wage records the expert has reviewed in formulating their opinion.
This can be done either by setting out each report and physician note in great detail or by noting each reported review and the pertinent diagnosis or functional information the report contains. Either review is acceptable. However, the detailed review appears to be “overkill” for a vocational assessment . The Vocational Expert report should contain the information obtained from the standardized vocational diagnostic interview. This section contains such information as the plaintiff’s age, education, and medical treatment. It should detail the effects of the injuries on the person’s ability to perform their activities of daily living, as well as their reported functional capacity.
4) Analysis of the plaintiff’s pre and post-injury employment.
This should be the largest and most detailed section of the report. This section should contain the name of the occupation, the Dictionary of Occupational Title’s code number, the physical requirements of the job, and the aptitudes and skills required of the job. The job analysis should be restricted to the last 15 years the plaintiff was employed, as the U.S. Government notes skills obtained prior to this time are usually obsolete. As part of the occupational section, the earnings for each job should be reported, if possible, using W-2 or income tax records, employer wage verifications, or union contract information.
5) Detail of any testing that was administered to the plaintiff.
OAS uses a combination of standardized vocational tests , work samples, and aptitude testing. If an evaluation is conducted via Skype, the CareerScope Aptitude Test will be administered in most cases. This is a very powerful test normed against the U.S. Department of Labor GAT-B. Unfortunately, less testing is being performed by Vocational Experts as part of their evaluations due to the time-consuming nature of the test administration and the skills required to administer the vocational testing. A household services evaluation may be included as part of the vocational report. An opinion as to the Plaintiff’s ability to be involved in Vocational Rehabilitation services is noted.
6) The vocational opinions are set out in detail.
The opinions of the Vocational Expert are followed by a loss of earning conclusion, which provides the “bottom line” figure. This figure also includes a warning that employability experts are not economists and their opinions do not replace those of an economic consultant.
7) Why is all this necessary?
A good Vocational Expert requires a multitude of information to formulate their opinion. Not all Vocational Experts are the same. By using this primer, the personal injury attorney can determine how valuable the report they receive will be and determine if it answers the question: “What is the Plaintiff’s pre and post-injury employability and earning capacity?”
Occupational Assessment Services has been involved as Vocational Experts in some of the largest verdicts in the United States, including Escobar vs. the State of New Jersey which received a verdict of $166,000,000, and Verni vs. Aramark which received a $105,000,000 verdict. With the use of the OAS Vocational Experts’ comprehensive reports and services, these large verdicts may not have been achieved.
OAS is a Nationwide Vocational Expert service with offices in NJ, NY, FL, TX, CT, and CA. To see how OAS Vocational Expert/ Life Care Plan reports can assist you in documenting the damages in your Personal Injury cases, consult oasinc.org or call 800-292-1919 for a proposal containing the experts’ professional qualifications, fee schedule, and a sample report.
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