A good forensic vocational expert will be able to explain to the court various important vocational concepts dealing with the ability of the plaintiff to be employed and earn money.
Employability is the standard that is discussed by the vocational expert in relation to the plaintiff’s ability to work. Employability is defined as an estimation of a person’s potential for employment in a job within a given local labor market. It assumes that the person is feasible for a job based on physical capacity, education, aptitude, temperament, and geographic location. This is measured by the number of jobs existing in a particular labor market. Most often this concept is confused by the plaintiff’s attorneys with placability. This concept refers to the plaintiff’s potential to be placed in a job within a given labor market which is extremely important in an economy with a high unemployment rate. This is the ultimate level of proof, i.e. Would an employer hire this person to perform a job?
The feasibility of competitive employment is assessed by the vocational expert. This is the plaintiff’s acceptability as an employee, in a general sense, as by an employer in the competitive labor market. This encompasses the plaintiff’s ability to actually perform the demands of a specific job.
Competitive employment is the ability of a person to be employed in the local labor market. Inherent in this concept is the person’s capability to work a full eight-hour per day, five-day per week basis, get to work on time, produce at sufficient speed acceptable to an employer, endurance, quality, and consistency acceptable to an employer, and get along with peers and supervisors.
A vocational handicap has to do with the ability of a person to obtain employment in a particular occupation. Each occupation has particular job demands, some of which are within the plaintiff’s work tolerance. Other demands are beyond the plaintiff’s work tolerance, thus imposing a vocational handicap. Vocational handicaps involve such physical limitations as sitting, standing, walking, lifting, carrying, grasping, and manipulating.
Earning capacity is the ability of an individual to earn money in the local or national labor market. The pre-injury earning capacity is the person’s ability to earn money prior to the injury and is usually compared to the individual’s ability to earn money after the accident, which is defined as his post-injury earning capacity. The difference between these two figures represents the diminution of earning capacity.
The last important definition is a residual functional capacity which is a quantitative measure of the plaintiff’s limitations caused by the injury. This encompasses the number of hours in an eight-hour day the person can sit, stand, walk, lift, and carry. Physicians using a Residual Functional Capacity Evaluation form, as well as vocational experts, can render opinions as to the plaintiff’s capability to perform these activities. A vocational expert takes the plaintiff’s residual functional capacity into consideration when making determinations on employability.
Before assessing the impact of disability on a person’s employability and earning capacity, the condition must be stabilized or have reached “maximum medical improvement.” One of the most important factors in determining the loss of earning capacity is the permanence of disability and the chances for rehabilitation or improvement.
In conclusion, it is important for the Vocational Expert to consider all factors, including the plaintiff’s education, occupation, and past earnings to determine their employability and earning capacity. Such a determination can greatly increase the case value.
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. Without the use of the OAS Vocational Reports, these large verdicts may not have been achieved.
OAS is a Nationwide Vocational Expert service with offices in NJ, NY, FL, TX, CT, PA & CA. To see how the OAS Vocational Experts/Life Care Planners 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 expert’s professional qualifications, fee schedule, and a sample report.