What Is the Role of a Vocational Expert in a Personal Injury Case?

Plaintiffs’ injury lawyers and insurance defense attorneys rely on vocational experts to prove or contest damages in personal injury cases. Vocational experts are usually part of a team of expert witnesses that lawyers employ to establish or defend against damages claims.

Routine personal injury cases do not require vocational experts. Most injuries that are typical of collisions or slip-and-falls heal completely within a few months. They might cause the victim to miss some work, but most personal injury victims return to their old jobs or find similar jobs at comparable pay after they heal.

Vocational experts help lawyers when injuries are so severe that the injury victim cannot return to former employment. Obvious examples are catastrophic injuries that confine victims to wheelchairs, deprive them of eyesight, or affect their ability to think. Brain injuries, spinal damage, amputations, and similarly life-changing injuries will nearly always affect employability.

Disabling injuries may affect future employment even if they are not catastrophic. An injury victim who has always performed manual labor will likely experience a loss of earning capacity if a back injury impairs the ability to lift or bend. A bus driver who can no longer sit for a prolonged time will probably need to start over in a new career. Vocational experts identify the kinds of work the victim of a permanent injury will be able to perform and quantify their loss of earning capacity.

Loss of Earning Capacity

Whether working for the plaintiff or offering a competing opinion for the defense, the vocational expert’s job is to assess the injury victim’s loss of earning capacity. That concept differs from loss of future earnings, or the specific amount of money that an injury victim would have earned if the injury had not occurred. Most jurisdictions categorize loss of future earnings as special damages and require the loss to be proved to a reasonable certainty.

In many cases, it is impossible to project future earnings to a reasonable certainty. A child who suffers a seriously disabling injury will have no work history. Since it is impossible to say whether a child would ever have earned more than minimum wage, the loss of minimum wage might be the only reasonably certain measure of damages for a child who will never be able to work. Yet most children grow up to earn substantially more than minimum wage, making loss of future earnings an unfair measure of damages.

Jurisdictions have almost uniformly adopted loss of earning capacity as the correct measure of damages in most cases where injuries cause a work impairment. A loss of earning capacity refers to the lost potential to earn future income. Damages arise from the diminished ability to earn income rather than the loss of specific earnings. 

Because loss of earning capacity is characterized as general rather than special damages, the plaintiff does not need to prove the loss to a reasonable certainty. Juries have discretion to award any reasonable amount that finds support in the evidence. Vocational experts provide that evidentiary support.

Services the Vocational Expert Performs

Vocational experts use a methodology that is accepted as reliable within their field of expertise. They begin by gathering sufficient facts upon which to base an opinion. The factual investigation typically begins with a determination of the injury victim’s earning capacity prior to the accident.

The victim’s earnings at the time of the injury are evidence of the victim’s earning capacity, but they are not always the best evidence. The victim might have been participating in an internship or working part-time to fulfill a volunteer obligation. The victim might have been performing military service. In those cases, the victim’s earning capacity might be more substantial than the victim’s actual earnings.

A vocational expert will examine the victim’s work history, educational history, military service, completion of job training programs, tax and payroll records, and other relevant data to analyze the victim’s earning ability prior to the injury. That investigation will include interviews with the victim and family members. The vocational expert might contact former employers to assess the victim’s vocational skills and job training. The expert might also administer tests and vocational assessments. When the victim is a minor, the vocational expert will interview his or her parents to determine the family’s pre-injury expectations and support for future educational programs, as well as the victim’s apparent vocational interests.

The vocational expert will then review all available medical records, paying particular attention to functional capacity evaluations. The vocational expert’s goal is to determine the physical and mental limitations caused by the victim’s injury that could have an impact on employability. That review should include medical examinations prior to the injury to separate impairments caused by the injury from preexisting conditions.

Based on all available information, the vocational expert will conduct a vocational evaluation. The expert will determine whether the victim is capable of performing jobs that are part of the victim’s employment history. Based on document reviews, interviews, and vocational testing , the vocational expert will identify transferrable skills that would help the victim perform work that the victim has not performed in the past. The vocational expert will identify jobs the victim would be capable of performing, taking into account the victim’s interests and capabilities as well as physical and mental limitations caused by the victim’s disability.

After identifying jobs the victim can perform, the expert will consult (and perhaps perform) labor market surveys to determine whether those jobs are available in the victim’s geographic location. The expert will then determine the range of pay that the victim could earn in available jobs. By comparing the victim’s current earning capacity to the victim’s pre-injury earning capacity, the expert can form an opinion about the victim’s loss of earning capacity.

A lawyer will probably engage an economist to compute damages based on the vocational expert’s opinion. Damages take into account lost earning capacity over the victim’s lifetime, adjusted for inflation and discounted to present value. The lawyer will then have an evidentiary basis for suggesting a damages award for the injury victim’s loss of earning capacity.