Authors
Loss of earning capacity is often a major element of economic damages. When a plaintiff alleges a significant loss of earning capacity due to physical or cognitive impairments from an injury, a vocational expert can reliably determine what, if any, post-injury jobs the plaintiff can perform and the earnings from those jobs. The vocational expert can develop a rehabilitation plan including education, training, accommodations, assistive devices, and vehicle modifications to meet the plaintiff’s obligation to mitigate damages. These are functions beyond the expertise of an economist. The vocational expert gives the economist an essential basis for his or her opinions on damages from loss of earning capacity.
Economists are not trained to make determinations of pre-injury or post-injury earning capacity in the same way a vocational expert can. At most, an economist can use a person’s historical earnings as an estimate of pre-injury earning capacity and then use assumptions about post-injury earning capacity provided by counsel. If there is a question about whether the individual can return to work, or what type of job they can return to, the vocational expert can assist the jury in answering these and other important questions including:
- Was the individual working at his or her pre-injury earning capacity before the injury?
- Was the individual able to continue working at their pre-injury job had the injury not occurred?
- If the individual cannot return to their pre-injury job, what jobs can they perform post injury?
- Can the individual’s post-injury earning capacity be increased with training or education?
Having a vocational expert answer these questions gives the economist a sound basis for calculating loss of earning capacity. Without the opinion of a vocational expert, an economist’s assumptions about pre-injury or post-injury earning capacity are more open to attack.
Pre-Injury Earning Capacity
Pre-injury earning capacity for an individual who has not completed formal education involves analyzing their educational history and projecting total educational attainment. For an adult who has completed formal education, determining pre-injury earning capacity involves analyzing their educational, employment, and earnings history. It requires consideration of whether the individual has voluntarily taken jobs that pay below their earning capacity. Physical or cognitive preexisting health conditions that limit vocational options must also be considered. Earning capacity may also be affected by the labor market in which the person lives.
Post-Injury Earning Capacity
In personal injury litigation, the plaintiff has sustained an injury. The injury causes temporary or permanent physical or cognitive impairments that affect their ability to perform certain functions in a job or in activities of daily living. Some injuries may leave a plaintiff permanently and totally disabled from performing any job. Vocational experts consult with physicians and other clinicians to determine the nature, severity, and duration of impairments from an injury.
An impairment may or may not prevent a person from returning to a pre-injury job. Different jobs have different functional requirements. A vocational expert has specific education and training to analyze and break down jobs into individual skills and abilities. They know how to analyze specific jobs and how an impairment affects a person’s ability to perform that job.
If an impairment(s) prevents a plaintiff from returning to their pre-injury job, the vocational expert can determine what jobs, if any, they can perform. In determining post-injury earning capacity the vocational expert must consider the Return-to-Work Hierarchy. This hierarchy includes several options for returning to work, including:
- Return to the same job and the same employer
- Return to a different job with the same employer
- Return to the same job with a different employer
- Return to a different job with a different employer
- Obtain formal training to qualify for a different job [1]
In some cases, a plaintiff can mitigate damages from loss of earning capacity by requesting accommodations from an employer or by obtaining modified equipment or vehicles. In other cases, the plaintiff can mitigate damages by obtaining training or education for jobs they can perform with their impairments. To determine post-injury earning capacity, the vocational expert identifies these options and their cost, and they incorporate all these factors into their final opinion on post-injury earning capacity.
Vocational Assessments
A vocational assessment is the basis for a vocational expert’s opinions. A vocational assessment may include different elements depending on the facts of the case. These include:
- Consultation with physicians and other clinicians to obtain detailed information on physical and cognitive impairments, recommendations for future treatment, the prognosis for change, the precise activity restrictions prescribed and their duration, recommendations for assistive devices and vehicle modifications, and medications that may affect job functions. The vocational expert needs to rely on physician opinions on the impairments due to the event that is the subject of the litigation. Determination of these impairments is usually outside the expertise of a vocational expert.
- Identification of reasonable accommodations and assistive devices to increase the range of jobs the individual can perform with impairments.
- Vocational tests to measure the individual’s interests, abilities, and aptitudes. These are standardized tests that measure a worker’s personality, academic ability, achievement levels, intelligence level, vocational aptitude, and vocational interests. These tests show current capabilities and the individual’s potential to benefit from additional training or education to learn new job skills. A vocational expert is trained to administer these tests and interpret the results.
- Transferable Skills Analysis to search the requirements of thousands of jobs to identify jobs the plaintiff could perform with impairment, with or without further training or education.
- Labor market survey to find the jobs the plaintiff could hold that are available within a reasonable commuting distance from their home or residence, usually 35 road miles one way. For some jobs, such as in the long-haul trucking, oil and gas, and heavy construction industries, commuting distance may not apply. Other jobs can be performed from home. Available jobs can be identified from online sources and through calls to employers.
- Development of a training or education plan where further training or education will increase post-injury earning capacity. The vocational expert collects information on relevant training courses, including location, duration, cost, and other details.
- Partial employment opportunity analysis for those receiving Social Security Disability Insurance (SSDI) benefits. Some plaintiffs receive SSDI benefits when the Social Security Administration (SSA) finds them disabled. Although a person is considered disabled by the SSA, they may still have the capacity to work and earn money. The SSA’s Ticket to Work program is a voluntary program encouraging those receiving SSDI to find jobs. SSDI recipients can earn $1,220 per month without losing SSDI benefits. The vocational expert will consider this opportunity to earn money when determining post-injury earning capacity.
Conclusion
The vocational expert gives the economist an essential basis for his or her opinions on damages from loss of earning capacity. When loss of earning capacity is a large element of damages in a personal injury case, counsel for plaintiff and defendant should consider designating a vocational expert in addition to an economist.
[1] Weed, R. & Field, T. (2001) Rehabilitation Consultant’s, Revised Edition. Athens, GA: Elliot & Fitzpatrick, Inc. p. 55.