Vocational Capacity Evaluations in Civil Injury
People who have been injured have a right to damages to compensate for pain and suffering, loss of earnings, and future medical expenses.
Vocational expert services are typically used in this area of tort or personal injury law when a plaintiff has been injured due to the actions of another party. The largest class of tort action involves automobile accidents, and then "slip-and-falls." Other sources of civil injury involve product liability and medical malpractice. The vocational expert becomes involved in the process of determining damages arising from the impact of the injury on a person's ability to work and earn wages. The role of the vocational expert involves understanding the nature and extent of occupational disability, identifying what residual capacity to work exists, and determining the extent of earning capacity loss through comparison of pre and post capacity to earn wages. A vocational capacity evaluation will typically involve the following components.
Pre-Injury Vocational Profile
The purpose of this step is to develop a comprehensive picture of a claimant's vocational capacity and opportunities within the labor market that existed prior to the injury occurring. The vocational expert will gather data regarding the claimant's health, educational development, trainings and certifications, work skills and industry knowledge to gauge pre-injury levels of employability and labor market access. Psychometric testing may be conducted to obtain data on aptitudes and other abilities. Expert vocational opinion is especially important in cases where a claimant may be unemployed, underemployed, early in career, or a student.
Post-Injury Vocational Profile
This step involves reviewing all relevant medical and employment records related to the injury to ascertain the presence of cognitive or physical limitations on occupational functioning. In cases where limitations permanently prohibit return to a job or occupation, the vocational expert can conduct an analysis of existing skills that might be transferred to other skilled occupations with different or lesser demands. In determining the post-injury vocational capacity that a claimant may possess following injury, characteristics of the labor market, need for accommodations, and future medical treatment must all be taken into consideration.
Pre-Injury Earning Capacity
Determining a claimant's pre-injury earning capacity involves creating a crosswalk from the claimant's pre-injury vocational profile to earnings associated with the vocational profile. For claimant's whose pre-injury job reflects reliable and maximized earnings, the use of actual earnings from their job may serve as the best base measure of earning capacity at the time of injury. For claimant's who are not maximally employed or have no earnings, a vocational expert may consult published wage statistics for occupations that are representative of the pre-injury vocational capacity and are available within the claimant's local labor market.
Post-Injury Earning Capacity
A claimant's post-injury earning capacity is obtained through creating a cross walk from the post-injury vocational capacity profile to a level of earnings associated with that profile. When a claimant is not returned to their job, a proxy wage figure can be calculated which is representative of the earnings associated with the claimant's remaining access to the labor market after taking into account functional restrictions.
Earning Capacity Loss Analysis
Loss of earning capacity as a result of the injury can be quantified by comparing the pre-injury estimated earning capacity with the post-injury earning capacity. Calculating this differential from the time of injury to the time of trial, provides a measure of historical damages arising from the injury. Extending the differential from the present to the estimated end of worklife, represents the damages associated with future loss of earning capacity.