A recent decision by a New York trial court illustrates the value of using a vocational expert to prove lost earning capacity. Sitting as the trier of fact without a jury, the New York judge awarded more than $1.5 million in future lost earnings resulting from an amputated thumb at a construction site.
Facts of the Case
Douglas Combes was working for a subcontractor on a project that involved building a retaining wall on the side of a freeway underpass. His job required him to load a 5-foot casing onto a large drill rig. The drill steel had been bent on an earlier project. An attempt to bend it back using a forklift was only partially successful. Because the casing did not fit into place properly, Combes had to “wiggle” it onto the drill steel. His thumb was caught in a pinch point.
Combes sued the general contractor for failing to comply with New York safety rules and regulations. One regulation requires power-operated equipment to be maintained in good repair. Another prohibits employers from permitting employees to use equipment that is not in good repair. Under New York law, general contractors are responsible for violations of those regulations by subcontractors.
The court found that Combes had the responsibility to be alert and aware and to “avoid the obvious pinch point that would ultimately claim his thumb.” However, Combes was under pressure to work quickly because the project was behind schedule. The court found that Combes was 35% at fault for the thumb injury and that the contractor was 65% at fault.
Hand and Thumb Injury
Combes’ treating surgeon testified that Combes suffered a “horrific industrial crush injury to his right thumb.” The skin was entirely torn from his thumb. His hand was fractured and four joints in the hand were damaged. Combes had three surgeries in an unsuccessful attempt to piece the thumb back together. The thumb was later amputated. He also had fusion surgery on his wrist.
Combes received a permanent impairment rating of 85% to the right hand and wrist and 100% to the right thumb. Combes’ surgeon testified that Combes had permanent lifting restrictions of 10 pounds, with occasional lifting up to 20 pounds. He will never be able to carry as much as 50 pounds and will suffer from chronic pain in the injured hand and limb.
Combes was age 37 at the time of his trial. He had a life expectancy of another 36 years.
The court awarded Combes his medical expenses of $36,244.72. The court awarded Combes $150,000 for past pain and suffering and another $300,000 for future pain and suffering. The remaining question was whether Combes would experience a significant loss of earning capacity.
Vocational Expert Testimony in New York
The court held that Combes was required to prove “the difference between what he is now able to earn and what he could have earned if he had not been injured.” Injury victims in New York are entitled to introduce expert testimony assessing damages based upon future probabilities.
Since at least the 1990s, New York courts have routinely acknowledged the admissibility of vocational expert testimony. In DiMichel v. S. Buffalo Ry. Co., 80 NY 2d 184 (1992), the New York Court of Appeals characterized a vocational expert’s testimony as “relevant evidence regarding plaintiff’s future earning power.” In Greene v. Xerox Corp., 244 AD 2d 877 (1997), the Appellate Division held that vocational experts are entitled to rely on labor market surveys because the rule against hearsay does not preclude experts from considering data that is commonly relied upon in their field of expertise. In Lopez v. Kenmore-Tonawanda School District, 275 AD 2d 894 (2000), the Appellate Division rejected an argument that testimony about future earning capacity is necessarily speculative.
In Grady v AHRC NYC New Projects, Inc., 2016 NY Slip Op 26089, a New York trial court held that the defendant was entitled to compel the plaintiff to submit to a vocational expert’s examination when the plaintiff claimed a loss of earning capacity. That examination could be ordered even if the plaintiff did not plan to introduce evidence from his own vocational expert. Other New York decisions have affirmed orders compelling plaintiffs to submit to vocational evaluations and to functional capacity evaluations that vocational experts can use to assess future employability.
Vocational Testimony in Combes’ Trial
Combes introduced the testimony of a vocational expert and an economist to establish his loss of earning capacity. The vocational expert had an appropriate educational background and certifications to qualify as an expert witness.
The expert testified that Combes’ position as a forklift operator at the time of trial placed him at the high end of his residual (post-accident) occupational earning ability, considering his education, work history and physical functional limitations as a result of the accident. She testified that his residual earning capacity fell within a range between $21,632 and $28,080.
Before the accident, Combes was earning about $64,700 a year. Using $28,000 as a post-accident earning capacity, an economist testified that Combes had lost about $364,500 until the time of trial. Based on an anticipated retirement age of 62, the economist calculated a loss of future earnings of more than $1.5 million.
The contractor argued that Combes was not entitled to damages for lost earnings because he failed to mitigate his damages. The contractor contended that Combes was capable of returning to his former job with a light duty status. However, the judge concluded that the employer failed to prove that Combes was offered light duty or that light duty was even available. The contractor therefore failed to meet its burden of providing that Combes did not mitigate his damages.
Vocational testimony played an instrumental role in proving Combes’ future loss. Although Combes was capable of working after the accident, vocational testimony established that his post-accident earning capacity was less than half of his earning capacity prior to the injury. Although Combes’ injury was not catastrophic — it affected his thumb and hand but the rest of his body was undamaged — vocational expert testimony made it possible for Combes to recover more than $1.5 million for his lost earning capacity.