The Impact of a Vocational Expert in a Workers Compensation Case

State and federal workers’ compensation laws provide benefits to employees who are injured at work. In addition to employer-provided medical treatment, workers’ compensation benefits include payments to individuals who cannot earn their former income because of a work injury. Those payments are known as disability benefits.

In most states, workers’ compensation law defines a disability as an impairment of the ability to earn income. Temporary total disability benefits, for example, are paid to employees who cannot work while they are recovering from a work injury. Those benefits are a form of wage replacement. They end when injuries have healed and the employee returns to work.

When work injuries do not heal completely, a worker may be entitled to permanent disability benefits. Those benefits depend on the extent of the lasting physical or mental impairment that the work injury caused and its impact on the worker’s ability to earn income.

Workers’ Compensation Definition of Disability

Workers’ compensation laws often define “disability” as a reduced ability to earn income by working. Florida’s workers’ compensation law, for example, defines “disability” as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.”

A total disability is generally defined as an inability to earn any income because of an impairment caused by a work injury. A partial disability refers to an impairment that permits the worker to earn some income but prevents the worker from earning the same wage that the worker earned before the work injury occurred.

The workers’ compensation definition of the term “disability” may be different than the definitions used by other government benefit programs or by private insurers. In general, however, workers’ compensation laws tie disability benefits to the injury victim’s reduced earning capacity.

Medical testimony alone may be sufficient to establish reduced earning capacity when the law presumes a total loss of earning capacity because of the nature of the disability. A complete loss of vision, for example, is often presumed to result in a full loss of earning capacity.

In most cases, however, medical testimony can only define the extent of the impairment. Injured workers often need to rely on vocational experts to establish the impact of the impairment on earning capacity.

Vocational Evidence in a Workers’ Comp Case

A recent case in Michigan illustrates the important role vocational experts play to support claims for workers’ compensation disability benefits. Michigan’s workers’ compensation law defines disability as a “limitation of an employee’s wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury or work-related disease.”

Ahmed Omer suffered a lower back injury while working for a steel processing company. The company’s workers’ compensation insurer contested Omer’s claim. At a hearing before a workers’ compensation judge, Omer offered evidence that his back injury was real, that it was caused by his work, and that he was totally disabled and could not work for a period of about nine months. 

The judge decided that Omer was a credible witness and that his testimony proved that he was injured while working. The judge also credited medical evidence, including the testimony of Omer’s treating physician and the findings in a physical therapy report that Omer was experiencing severe back pain. Based on that evidence and on the testimony of a vocational expert, the judge awarded Omer total temporary disability benefits for the months during which he could not work.

The insurance company appealed the finding that Omer suffered from a total disability. The company argued that medical evidence did not establish that Omer was incapable of earning wages for a nine-month period.

Medical Evidence Is Not Enough to Prove Diminished Earning Capacity

The Michigan Supreme Court agreed with the insurer that establishing a workers’ compensation disability “requires more than a medical diagnosis or a physician’s testimony that the claimant can no longer perform their existing job duties.” A “mere diagnosis” is usually insufficient evidence of a physical impairment’s impact on a worker’s earning capacity. 

Nor is a “conclusory statement” by a doctor that a patient is incapable of working sufficient proof of a workers’ compensation disability. The inability to work is established by comparing a worker’s injury-related limitations to the requirements of employment. Physicians are not generally trained to make that comparison.

The state supreme court noted that workers’ compensation claimants typically offer “evidence about employment opportunities and suitability” in addition to medical evidence. Omer did so in this case by offering the testimony of a vocational expert. 

The supreme court found the testimony of the worker’s vocational expert to be “particularly significant.” The vocational expert reviewed the medical findings and determined that Omer was capable of performing only sedentary work. Based on his work history, education, and training, his employment at the time he was injured paid the highest wage he was capable of earning. That work was not sedentary and no sedentary work that Omer was qualified to perform paid the same wages. Omer was disabled because his earning ability was impaired by a work injury.

Establishing a diminished earning capacity proved that Omer was disabled. The next question was whether Omer was totally disabled (meaning he could do no work while recovering) or partially disabled (meaning he could have performed a sedentary job). The workers’ compensation judge credited Omer’s testimony that he was in too much pain to work. Coupled with the vocational expert’s testimony that Omer was disabled, the judge had a sufficient basis for ruling that Omer was entitled to a temporary total disability benefit

Working with Vocational Experts in Workers’ Comp Cases

While workers’ compensation laws vary, the opinion of a vocational expert may be important evidence when a claim is made for temporary or permanent disability benefits. Vocational experts can determine the kind of work that a client can perform in light of restrictions imposed by physicians because of a work injury. Vocational experts can then determine whether the injury victim is qualified to perform any of those jobs. A market survey can determine whether any such jobs are available in the worker’s community.

By comparing wages paid for the jobs an injury victim might be able to perform to the victim’s former earnings, a vocational expert can determine whether the injury victim’s earning capacity has been impaired by the work injury. That testimony helps lawyers prove the existence of a work-related disability.