Using a Vocational Expert to Establish Pre & Post Injury Earning Capacity in Personal Injury Cases

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Many personal injury attorneys do not realize that one of the most important roles a Vocational Expert can perform is to establish the plaintiff’s pre-injury earning capacity.

Many Vocational Experts routinely use the plaintiff’s actual earnings to establish their pre-injury earning capacity. However, many times, this figure does not accurately reflect the plaintiff’s potential earnings over their work life.

If the injury is permanent, it will have a long term effect on the plaintiff’s ability to work and earn money.

The classic example is the 25-year-old man who was seriously injured while attending medical school to become a doctor and is putting himself through school by working as a fast-food worker at McDonald’s. Does the $8 an hour salary he is earning as a fast-food worker best represent his earning capacity? Or, do the average earnings of a physician in his geographical area best represent his earning capacity? Obviously, it is his potential earnings as a physician that most accurately represents his pre-injury earning capacity.

The experienced Vocational Expert will use the Occupational Employment Statistics published by the U.S. Department of Labor for each city and state in the United States to establish the individual’s pre-injury earning capacity. The government surveys every employer to establish average salaries for 256 occupational groups. In every case, the Vocational Expert should compare the plaintiff’s actual earnings to the salary reported by the U.S. Government as the average wage of the plaintiff’s occupation.

This is most important in establishing the earning capacity of a younger worker or a worker who is just beginning in a particular occupation.

Let’s look at the difference in the total loss by using the actual earnings of a 30-year-old tractor-trailer driver in New York City who has just started in this occupation and is earning $32,000. Using a work-life expectancy of 37 more years yields the following:


  Amount of Loss
Pre-Injury Earning Capacity Loss $1,184,000
Loss of Fringe Benefits (20%) $236,800


Using DOL average earnings for a Tractor Trailer Driver of $50,000 per annum

  Amount of Loss
Pre-Injury Earning Capacity Loss $1,850,000
Loss of Fringe Benefits (20%) $370,000

Having the Vocational Expert establish the Plaintiff’s Earning Capacity, in this case, resulting in a $799,200 difference in favor of the plaintiff.

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 Armark which received a $105,000,000 verdict.

Without the use of the OAS Vocational Expert 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 Plans can assist you in documenting the damages in your Personal Injury cases, consult or Call 800-292-1919 for a proposal containing the experts’ professional qualifications, fee schedule, and a sample life care plan report.