Vocational Experts are Important Witnesses for Loss of Earning Capacity Evaluations

A vocational expert (VE) is usually called to testify or present a written evaluation at a personal injury hearing because of his or her expertise knowledge in current job market topics such as skills needed to perform a job and job availability. The VE is usually asked to testify about what jobs the plaintiff can perform, given limitations presented after the injury occurred. The VE’s opinion about the ability of the plaintiff to work after the accident can be instrumental in determining the outcome of the case.  We asked Dr. Ronald L. Rosenberg, PhD, ABVE, CEA to provide more information on the subject. Here is his post:

Important Aspects That a Forensic VocationalExpert Needs from a Plaintiff Attorney in Personal Injury Claims

The plaintiff attorney can clearly seek financial compensation for his or her client’s personal injuries with adequate medical documentation.  However, a forensic vocational expert is engaged to enhance the claim with a Vocational Economic Loss.  Thus, these aspects are salient:

The Incident in Question

  • Although there is a verifiable accident, did the injuries sustained have a substantial impact on the Plaintiff’s functional capacity. This goes beyond the immediate impact to permanent substantial alteration of working capacity.

Health Status @ Time of the Accident

  • Pre-existing medical issues that could confound the impact of the accident in the question of any subsequent injury-generating events

Income Verification

  • Very important. Can your client substantiate his or her earnings via W-2s, tax returns, and the best case scenario: Social Security Earnings Record (online from SSA.GOV) or obtainable through the Personal Earnings and Benefit Estimation Statement from a local office (which would include historical earnings)

Understanding Loss of Earning Capacity in Litigation

  • Earning Capacity (as defined in Black’s Law Dictionary) is accepted in most case law jurisdictions. Namely, the attorney’s claim for the Plaintiff may not be strictly tied to the specific wages at the time of the accident if (s)he was underemployed, unemployed but fully employable, transitioning back to full employment, or a student or in training.  If a past loss may be hard to proffer, there could still be a FUTURE LOSS of earning capacity or what the Plaintiff is able to earn by training, education, or work experience.

Other Aspects

  • Age
  • Language/Culture
  • Gender (although one must be careful to avoid gender bias)
  • The challenge of small business owners, independent contractors, or self-employed

A competent vocational expert should be willing to vet the prospective assignment with the attorney to insure the best chance for a favorable outcome.

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