You Might Need a Vocational Expert. Here’s Why?

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Vocational expert

Lawyers hire vocational experts to testify in a variety of cases. Vocational experts prepare reports that lawyers use to support or defend against claims for damages in personal injury and employment law cases. When those cases do not resolve, vocational experts give reliable testimony that meets the admissibility standards of Federal Rule of Evidence 702 or its state counterpart.

Vocational experts also support disability claims when employability and earning capacity are relevant to an award of benefits. Some Veterans’ Administration and workers’ compensation claims can be supported with vocational expert opinions, as can SSI and SSDI claims.

Family law disputes regarding child support and alimony often turn on whether a spouse is shirking his or her support obligation by deliberately working for less pay than the spouse is capable of earning. Vocational experts are well-positioned to offer opinions about employability and earning capacity in family law cases.

Personal Injury Claims

Personal injury lawyers hire vocational experts to prove or defend against claims of lost eaning capacity. Those claims are typically made when accidents cause injuries that result in long-term disabilities.

A claim of past wage loss can be established with evidence that the plaintiff missed work while recovering from an injury, coupled with evidence of the plaintiff’s daily wage and the number of days that the plaintiff could not work. Proving a loss of future earning capacity is more complicated.

Loss of earning capacity refers to a loss of the ability to earn income that the plaintiff enjoyed prior to the injury. Even if the plaintiff was unemployed at the time of the injury — and even if the plaintiff is a minor with no job history at all — a vocational expert can determine the plaintiff’s loss of the potential to earn income. 

When the plaintiff has a job history, a vocational expert will examine several factors to calculate a loss of earning capacity. Those factors include the plaintiff’s education and vocational training, the plaintiff’s work history and past earnings, the skills needed for the plaintiff’s most recent employment, and the plaintiff’s plans for the future. The vocational expert will then examine medical records, including functional capacity evaluations, to determine whether the plaintiff is capable of performing past employment in light of his or her functional limitations.

If the plaintiff cannot continue his or her pre-injury employment, the expert will examine the range of jobs that the plaintiff is capable of performing in light of the plaintiff’s impairments. The expert will determine whether the plaintiff has transferable skills that will qualify the plaintiff for new employment.

When the plaintiff’s ability to work has been limited by accident injuries, the expert will compare the plaintiff’s earning ability before the accident to the plaintiff’s potential earnings after the accident. The difference reflects a loss of earning capacity. An economist typically projects that loss of earning capacity into the future based on the plaintiff’s life expectance and reduces it to present value.

Employment Law Claims

Discrimination, whistleblowing, and other cases that involve wrongful terminations typically include lost wages and equitable remedies as damages. Equitable remedies may include reinstatement to a position or an award of front pay in lieu of reinstatement.

Among other defenses, employers often argue that a discharged employee failed to mitigate damages. The burden is typically on the employer to prove a mitigation defense. An employer must usually prove that a plaintiff failed to make reasonable efforts to find new employment. For the most part, plaintiffs are not required to take any available job but must seek a job that is “substantially equivalent” to the job they lost.

Vocational experts search the local job market to assess the availability of jobs that are equivalent to the employee’s former position with regard to job duties, compensation, and prestige. Experts offer opinions about jobs that a plaintiff is qualified to perform and which would likely have been available to the plaintiff if the plaintiff had conducted a reasonable job search. Establishing that substantially equivalent jobs were available can help a defendant establish a mitigation defense.

Disability Claims

Several federal and state statutes base disability benefits upon an individual’s ability to work. The Veterans’ Administration pays benefits based on a 100% disability to qualifying veterans who have a disability rating of at least 60% if they are incapable of earning a threshold income. Receipt of Total Disability Individual Unemployability (TDIU) benefits hinges on proof that the applicant cannot engage in substantial gainful employment. Vocational experts help veterans prove that fact.

The Social Security Administration pays disability benefits through its Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs. The programs are similar to TDIU in that most applicants must prove that they cannot engage in substantial gainful activity. Vocational experts consider the functional capacity assessments completed by medical providers and their own assessment of the applicant’s employability to determine whether there are substantial jobs in the national economy that the applicant can perform.

State and federal workers’ compensation benefits often hinge on assessments of the impact a disability had on the victim’s ability to earn income. Again, vocational experts make that assessment based on a comparison of the victim’s functional capacity to the demands of various positions in the job market that the victim should be able to perform.

Family Law Disputes

Family law judges base alimony (also known as spousal support or maintenance) on the incomes of both spouses. If one spouse is earning less than that spouse could be earning, a judge must decide whether the spouse is shirking. That finding is more likely when the spouse recently quit or lost a job and began working in an occupation that pays substantially less than the spouse’s former earnings.

When a spouse is shirking, the judge can impute income to the spouse that the spouse could realistically earn. A vocational expert can guide the judge’s decision by offering objective evidence of the spouse’s actual earning capacity.

Vocational experts examine the spouse’s work history, education, age, and the labor market to determine whether the spouse has the realistic ability to earn a higher income. Vocational experts can offer evidence that the spouse’s earning capacity is substantially higher than the spouse’s current income reflects. Alternatively, a vocational expert might determine that no employment opportunities are realistically available that would allow the spouse to match recent earnings.