IDENTIFICATION OF CORE VARIABLES TO BE CONSIDERED IN AN ASSESSMENT OF VOCATIONAL...

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IDENTIFICATION OF CORE VARIABLES TO BE CONSIDERED IN AN ASSESSMENT OF VOCATIONAL EARNING CAPACITY IN A LEGAL-FORENSIC SETTING:

A DELPHI STUDY

By

RICK ROBINSON

A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT

OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

2011

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© 2011Rick Robinson

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ACKNOWLEDGMENTS

I thank Dr. Chad Betters and Dr. Linda Shaw for their encouragement to pursue doctoral

level study in the Rehabilitation Science field. If not for their encouragement, I may have still

been talking about entering a doctoral program versus standing at the finish line of this incredible

academic journey.

I am forever grateful to my doctoral committee members. I am most thankful to my

committee chair, Dr. Jamie Pomeranz for being an incredible mentor, colleague and friend. His

guidance and advice always led me down the path of greatest success. Dr. Mary Ellen Young

was always ready and willing to provide input and guidance on qualitative research methods and

design. I thank her for sparking this interest that will continue to be a core methodology in my

future research endeavors. From my earliest contact with Dr. Jay Rosenbeck in the

rehabilitation science foundation’s class, his passion for rehabilitation research and application

was evident. His gentle encouragement and unyielding commitment to his students and to my

doctoral studies is greatly appreciated. I thank Dr. David Miller for his support of my doctoral

studies and for his ability to make my qualitative mind think in quantitative terms.

To my many colleagues and peers I have consulted with during this journey, and my

colleagues around the nation who agreed to participate in this research, I will be forever grateful.

Special thanks are extended to Dr. Mike Moorhouse; Dr. Laura Perry; Dr. Horace Sawyer and

Dr. Mary Barros-Bailey. To Margaret Odom, I am thankful for her steadfast guidance which

was instrumental in navigating the complex waters of doctoral level study. Lastly, I thank the

boards of directors for the International Association of Rehabilitation Professionals and the

American Board of Vocational Experts for their assistance in recruitment for my dissertation

research. Their support was key to the success of this study.

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Lastly, to my wife Kimberly who offers unconditional love, emotional support and

encouragement to me every day. Her encouragement and willingness to support my dreams has

always been unwavering. It is through her strength as a woman, mother and wife that we have

been able to achieve success never thought possible when we started life’s journey together some

25 years ago.

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TABLE OF CONTENTS page

ACKNOWLEDGMENTS ...............................................................................................................3

LIST OF TABLES ...........................................................................................................................8

LIST OF FIGURES .......................................................................................................................10

ABSTRACT ...................................................................................................................................11

1 INTRODUCTION ..................................................................................................................12

Background .............................................................................................................................12 Models of Vocational Assessment ..........................................................................................13 Earning Capacity Evidentiary Standards ................................................................................17 Vocational Earning Capacity and Forensic Damages ............................................................20 Research Question ..................................................................................................................23

2 LITERATURE REVIEW .......................................................................................................24

Models of Disablement ...........................................................................................................24 Vocational Capacity Determination .......................................................................................27 Genesis and Evolution of Vocational Rehabilitation and Evaluation ....................................28 Vocational Capacity Determination Venues ..........................................................................30

Venue One: Workers Compensation Expert Consultation ..............................................31 Venue Two: Social Security Expert Consultation ...........................................................32 Venue Three: Civil Litigation Forensic Consultation .....................................................39

Standard of Evidence ..............................................................................................................41 Models of Vocational Earning Capacity Assessment .............................................................43

RAPEL ............................................................................................................................43 Shahnasarian Model / Method .........................................................................................46 Deutsch / Sawyer Model .................................................................................................48 Labor Market Access Model ...........................................................................................49 Dillman’s Loss of Earning Capacity Model ....................................................................50 McCroskey Vocational Quotient System (MVQS) .........................................................50 Rehabilitation Case Analysis Method (RECAM) ...........................................................51

Economic Foundations of Earning Capacity Assessment ......................................................52 Economic Present Value .........................................................................................................54 Comparison of Consensus Methods .......................................................................................55

Nominal Group Technique ..............................................................................................55 National Institutes of Health Consensus Development Conference ................................56 Glaser Approach ..............................................................................................................57 Delphi Method .................................................................................................................57

Rationale for Use of the Delphi Method .................................................................................58 The Delphi Technique and Process ........................................................................................59 Application of the Delphi Method to Rehabilitation Research ..............................................63

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Review of Delphi Studies in the Field of Rehabilitation ........................................................64

3 METHODOLOGY .................................................................................................................68

Research Question ..................................................................................................................69 Study Design ...........................................................................................................................69 Expert Panelist Selection ........................................................................................................69 Expert Panelist Incentive to Participate ..................................................................................72 Delphi Procedure ....................................................................................................................73

Round 1 ....................................................................................................................73 Round 2 ....................................................................................................................74 Round 3 ....................................................................................................................75

Consensus ...............................................................................................................................75

4 RESULTS ...............................................................................................................................78

Panel Qualification .................................................................................................................78 Panel Demographics ...............................................................................................................78 Delphi Round 1 .......................................................................................................................82 Delphi Round 2 .......................................................................................................................82 Delphi Round 3 .......................................................................................................................83 Domains of Accepted Variables ...........................................................................................112

Socioeconomic Domain .................................................................................................113 Cultural Domain ............................................................................................................114 Education Domains .......................................................................................................115 Past Work Domains .......................................................................................................117 Job Acquisition and Maintenance Domain ....................................................................119 Military Service Experience Domain ............................................................................120 Language Skills Domain ...............................................................................................120 Medical History and Treatment Domain .......................................................................121 Medical-Functional Capacity ........................................................................................122 Behavioral Health Domain ............................................................................................123 Household Activities Domain .......................................................................................125 Activities of Daily Living Domain ................................................................................126 Avocational Activity Domain ........................................................................................126 Transportation Domain ..................................................................................................126 Financial Domain ..........................................................................................................127 Economic Domain .........................................................................................................128 Psychometric Instrumentation .......................................................................................128 Transferable Skills .........................................................................................................129 Labor Market Statistical Information Domain ..............................................................131 Labor Market Sampling Domain ...................................................................................132 Work Life Participation .................................................................................................133 Rehabilitation Planning and Services Domain ..............................................................133 Professional Resources Domain ....................................................................................134 Legal Jurisdiction Domain ............................................................................................135

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5 CONCLUSIONS ..................................................................................................................136

Overview of Significant Findings .........................................................................................136 Delphi Study ..................................................................................................................136 Items Unique to Legal-Forensic Settings ......................................................................137

Economic variables ................................................................................................137 Work life participation variables ............................................................................138 Legal jurisdiction variables ....................................................................................141

Unique Domain Findings ..............................................................................................141 Labor marketing sampling domain ........................................................................142 Cultural domain ......................................................................................................143

Results and the ICF Model ............................................................................................145 Assumptions .........................................................................................................................146 Limitations of the Study .......................................................................................................147 Implications of the Study ......................................................................................................149

Data Modeling ...............................................................................................................149 Self-Assessment ............................................................................................................150 Training & Education ....................................................................................................151

Recommendations for Future Research ................................................................................152

APPENDIX

A RECRUITMENT LETTER TO IARP ..................................................................................154

B RECRUITMENT LETTER TO ABVE ................................................................................156

C PANELIST QUALIFICATION QUESTIONAIRE .............................................................158

D DELPHI ROUND 1 QUESTIONAIRE................................................................................161

E BETA REVIEWER FEEDBACK AND ACTIONS TAKEN ..............................................174

F QUALITATIVE CONTENT ANALYSISAUDIT TRAIL ..................................................178

G DELPHI ROUND 2 QUESTIONAIRE................................................................................283

H DELPHI ROUND 3 QUESTIONAIRE................................................................................322

LIST OF REFERENCES .............................................................................................................406

BIOGRAPHICAL SKETCH .......................................................................................................424

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LIST OF TABLES

Table page 2-1 Worker traits considered in social security claim adjudication .........................................37

4-1 Expert panel practice location ............................................................................................78

4-2 Expert panel highest degree held .......................................................................................79

4-3 Expert panel credentials .....................................................................................................79

4-4 Expert panel memberships .................................................................................................79

4-5 Expert panel years of practice ............................................................................................80

4-6 Expert panel areas of practice ............................................................................................80

4-7 Expert panel percent litigated vs. non-litigated .................................................................81

4-8 Expert panel percent of litigated cases retained by the defense .........................................81

4-9 Expert panel testimony experience ....................................................................................82

4-10 Variables with mean greater than 5 and interquartile range from 0 to 2 ...........................84

4-11 Variables with mean less than 5 and / or interquartile range greater than 2 ......................98

4-12 Percentage of variables accepted for each domain ..........................................................112

4-13 Socioeconomic variables accepted ..................................................................................113

4-14 Cultural variables accepted ..............................................................................................115

4-15 Education-compulsory (k-12) variables accepted ............................................................115

4-16 Education-vocational and apprenticeship variables accepted ..........................................115

4-17 Education-higher education (college) variables accepted ................................................116

4-18 Education-general variables accepted ..............................................................................116

4-19 Past work experience-variables specific to the job accepted ...........................................117

4-20 Past work experience-variables specific to the employee accepted .................................118

4-21 Past work experience-variables specific to the employer accepted .................................118

4-22 Job acquisition and maintenance variables accepted .......................................................119

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4-23 Military service experience variables accepted ...............................................................120

4-24 Language skill variables accepted ...................................................................................120

4-25 Medical history and treatment variables accepted ...........................................................121

4-26 Medical-functional capacity variables accepted ..............................................................123

4-27 Behavioral health variables accepted ...............................................................................124

4-28 Household activity variables accepted .............................................................................125

4-29 Activities of daily living variables accepted ....................................................................126

4-30 Avocational activity variables accepted ...........................................................................126

4-31 Transportation variables accepted....................................................................................127

4-32 Financial variables accepted ............................................................................................127

4-33 Economic variables accepted ...........................................................................................128

4-34 Psychometric measurement variables accepted ...............................................................129

4-35 Transferable skill variables accepted ...............................................................................130

4-36 Labor market statistical information variables accepted .................................................131

4-37 Labor market sampling variables accepted ......................................................................132

4-38 Work life participation variables accepted ......................................................................133

4-39 Rehabilitation planning and service variables accepted ..................................................134

4-40 Professional resource variables accepted .........................................................................135

4-41 Legal jurisdiction variables accepted ...............................................................................135

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LIST OF FIGURES

Figure page 3-1 Level of importance rating scale ........................................................................................74

5-1 Proposed vocational and rehabilitation assessment model ..............................................150

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Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy

IDENTIFICATION OF CORE VARIABLES TO BE CONSIDERED IN AN ASSESSMENT

OF VOCATIONAL EARNING CAPACITY IN A LEGAL-FORENSIC SETTING: A DELPHI STUDY

By

Rick Robinson

August 2011

Chair:Jamie Pomeranz Major: Rehabilitation Science

The goal of this study was to assess a potential set of items considered core to the

assessment of vocational earning capacity in a legal-forensic setting. Despite numerous

published methods and protocols addressing assessment of vocational earning capacity, there is

considerable variability among vocational consultant conclusions and opinions. A high level of

variability in opinion and methodology is problematic within legal-forensic settings.

A three-round Delphi expert consensus building methodology was utilized in this study.

The expert panel size from round one to round three was 47 and 38 respectively, yielding a

response rate over all three rounds of expert input of 81%. This study resulted in identification

of 232 discrete variables viewed by vocational consultants as core to the assessment of

vocational earning capacity in a legal-forensic setting. Variables were distributed across 29

distinct domains. The findings of this study provide empirical support for a proposed set of core

variables to be used to assess vocational earning capacity. Implications of study findings and

recommendations for future research are included.

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CHAPTER 1 INTRODUCTION

Background

The foundation of the modern day vocational rehabilitation profession can be traced back

to 1920 with the enactment of the Smith-Fess Act (Roessler & Rubin, 2006). Also known as the

Civilian Vocational Rehabilitation Act, the Smith-Fess Act extended vocational rehabilitation

services to civilian individuals with a physical disability (Rubin & Roessler, 2008). Since

inception of the vocational rehabilitation profession, substantial literature contributions have

been made to describe factors and issues relevant to determining a person’s vocational and

earning capacity. Farnsworth, Field, Field, Griffin, Jayne, Johnson et al. (2005) wrote that the

process of vocational evaluation draws upon clinical skills from the fields of psychology,

counseling and education. Specific skills include file review, diagnostic interviewing,

psychometric testing, clinical observation, data interpretation and career counseling (Farnsworth

et al., 2005). Vocational rehabilitation counselors apply these skills when conducting a

vocational evaluation.

Since inception, the role and function of the vocational rehabilitation counselor has been

a topic of debate. Early rehabilitation counseling pioneers advocated for a division of labor with

respect to rehabilitation scope and function as “rehabilitation counselors” and “rehabilitation

coordinators” (Patterson, 1957). This arbitrary bifurcation was not practical as rehabilitation

counselors required a complex continuum of skills that involved counseling, evaluation and

coordinating functions (Hershenson, 1990, 1998; Koch, Hennessey, Niese, Tabor, & Petro, 2004;

Leahy, Chan, & Saunders, 2003). Over time, the role, function and scope of practice of

rehabilitation counselors has evolved into a well-established profession with established

methods, protocols and standards of practice (Leahy et al., 2003; Rubin & Roessler, 2008).

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Rubin and Roessler (2008) described the rehabilitation counseling process as involving four

sequential steps that include evaluation, planning, treatment and termination. The foundation of

the rehabilitation counseling process rests upon the initial vocational evaluation and exploration

of vocational options by the counselor. It is the initial evaluation that establishes the

rehabilitation parameters for the remaining phases of the rehabilitation process.

Inherent to the vocational rehabilitation process, and in particular, the vocational

evaluation phase, is a focus on exploring variables such as an evaluee’s vocationally relevant

capabilities, skills and interests, both presently and prospectively (Rubin & Roessler, 2008). The

variables in composite make up the person’s unique vocational profile. With respect to

assessment of future earning capacity, the rehabilitation process is used to determine vocational

options for which a person is qualified or may be able to be trained. Wages earned from

identified vocational options represent the person’s vocational earning capacity given their

unique vocational profile (Owings, Lewis, Streby, & Hildebrand, 2007). It is the rehabilitation

process and framework that has given way to the vocational rehabilitation counselor’s

contemporary role as the generally accepted expert in earning capacity assessment (Owings et

al., 2007).

Models of Vocational Assessment

Isaacson (1977) described four broad categories of variables that influence workers and

their careers. These categories include psychological, physical, sociological and economic

factors. The first two categories, psychological and physical, include consideration of aptitudes;

interests, personality and temperament; values; psychological characteristics; training time;

physical demands; work conditions and hiring requirements (Isaacson, 1977). The individual

psychological and physical factors are best conceptualized as the demands placed upon a worker

by the job itself.

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The latter two categories, sociological and economic, include consideration of

occupational regulations; occupational behavioral requirements (both on and off the job);

occupational prestige; occupational mobility; economic factors such as supply and demand; and

the implications of the interaction(s) between the various sociological and economic factors

(Isaacson, 1977). Individual sociological and economic factors are best conceptualized as factors

that influence a person’s vocational selection that are beyond the walls of the workplace. Some

vocational opportunities are ruled out or limited by occupational regulations or barriers. For

example, the Fair Labor Standards Act prevents children under the age of 14 from working and

limits the number of work hours and work environments for individuals up to 16 years of age

(Fair Labor Standards Act, 1938). Certain occupations are commonly held to a higher standard

in terms of occupational behavior requirements. Many professional occupations have codes of

ethics or canons of professional behavior that are mandatory to protect the public faith and

confidence. Adherence to these codes or canons is not optional, but required in order to be

allowed to participate in the vocation. Some occupations within a culture are viewed with

greater occupational prestige than other vocations. For example, the practice of law or medicine

is typically viewed with greater prestige than are craft types of jobs such as plumbers or

electricians. Some jobs offer greater occupational mobility to move into various work settings

within a job classification. Economic supply and demand will determine the market conditions

under which workers are hired, retained and promoted. Based upon supply and demand factors,

the market will define the necessary skill set for a worker to obtain jobs in their chosen

profession. For example, a highly skilled employee who has invested significantly in

vocational training and preparation may not be employable in a market where the training and

skill set are in low demand.

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Roessler & Rubin (2006) categorized 48 unique factors into four broad categories to be

evaluated in arriving at a diagnostic understanding of an individual’s vocational potential. The

first category of physical factors gives consideration to disability type, duration, etiology,

treatment regimen, progression, medication and side effects, residual functional capacity, and the

interaction of the environment and an impairment to limit or prompt a vocational disability or

handicap. Psychosocial factors address issues related to the person’s adjustment to impairment

or disability and the status of family and other relationships within a social context. Educational

and vocational development factors address a person’s educational and work history. This

requires an evaluation of the level of ability and aptitude an evaluee may have toward primary,

secondary and vocational education. Input regarding a person’s work history provides

information on work skills, duration, preferences, transitions, and impact of the impairment or

disability upon employability. Lastly, economic factors provide insight into household

resources such as financial support, debt, fixed living expenses, public benefits, health insurance,

and expectations of financial need.

Power (2006), outlined a comprehensive “model of vocational functioning” that

considers one’s existing and prospective vocational assets within the context of one’s physical

characteristics, intellectual characteristics, emotional characteristics, environmental factors and

evaluee specific considerations. Physical characteristics of the individual include variables such

as physical appearance, stamina and endurance, general health condition, sensory ability for

vision and hearing, motor coordination, personal hygiene, and physical limitations that impact a

person’s ability to meet the basic work demands of a particular job (Power, 2006). Intellectual

characteristics include the persons knowledge of the world of work, educational development,

vocational aptitudes, work experience, decision making skills, memory, attention span, work

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competencies, vocational interests, personal values, disability related knowledge, and

adaptability to the work environment (Power, 2006). Emotional characteristics address a

person’s mood and temperament, personal needs, work attitudes, individual motivation,

adjustment to disability, and coping skills (Power, 2006). Environmental factors include family

situation and support, financial resources, attitudes of others, workplace accessibility, and

community factors (Power, 2006). Evaluee specific considerations include medications and side

effects, supportive aids, job opportunity, employment precautions, and individual social skills

(Power, 2006).

Shahnasarian (2004) introduced 14 specific factors that should be addressed in evaluating

the vocational earning potential of a person. These factors include stability of career

development; work propensity; demonstrated earnings history; phase of career development;

subject specific issues; motivation; ability to apply prior skills; future career development

prospects; cognition; prognosis; need and capacity for retraining; pre-existing vocational

handicaps; acquired vocational handicaps; and vocational adjustment issues.

In addition to the field of vocational rehabilitation, literature from the field of economics

also addresses factors to be considered in vocational assessment. The economic literature

mainly addresses vocational rehabilitation issues from a forensic perspective wherein vocational

potential and earning capacity are being litigated. Horner and Slesnick (1999) highlight the

1989 Louisiana Court of Appeals case of Landry v. Melacon (1989) wherein the trier of fact

ruled:

The loss of the ability to work is in itself a compensable element of damages. Earning capacity is not measured by actual loss; even an unemployed, or sporadically employed, plaintiff is entitled to recover for the deprivation of what he could have earned.

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Dillman (1987) addressed interfacing the economic and vocational aspects of personal

injury cases. Vocational factors to be considered include general educational development;

specific vocational preparation; occupational aptitudes; occupational interests; occupational

temperaments; and physical demands (Dillman, 1987). Dillman (1988), described the concept of

the age-earnings cycle that conceptualizes the interaction between an individual’s age, education

and gender with the person’s expected earning rate over his or her work life.

Horner and Slesnick (1999) conceptualized vocational factors within an economic supply

and demand model. Supply side factors are presented to an employer by an employee in

consideration for employment. These factors include an individual’s functional capacity;

vocational capacity; and worker’s preferences (Horner & Slesnick, 1999). Demand side factors

are external to the individual being evaluated and are a function of the number of jobs available

with employers at a given wage rate and for a specific vocational capacity profile (Horner &

Slesnick, 1999). The demand side considers local demographics and geography for a particular

labor market, the unemployment rate and the availability or supply of workers matching the

needed vocational profile.

Earning Capacity Evidentiary Standards

The assessment of “earning capacity” is a relatively recent extension of the scope of

practice of vocational rehabilitation counselors (Owings et al., 2007). Many authors have

attempted to define earning capacity over the years with most of the definitions differing mainly

on semantic terms. This has created significant debate resulting in a lack of consensus (Grimes,

2008). Dobbs (1993) described the concept of a loss of earning capacity as a present or

prospective loss of human capital and the opportunity it represents. Dobbs (1993) further opined

that even though an injured party may earn the same wages after an injury as before, there may

still be a loss of earning capacity. In this situation, the earning capacity loss may be prospective,

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representing a diminution in earnings at some future point, or requiring an increase in personal

effort to maintain the same level of earnings capacity. Conceptually, if an individual’s capacity

for work remains the same after an injury, but the probability of the person actually being hired

is reduced, the plaintiff has then incurred a measurable loss for which compensation can be

sought (Dobbs, 1993). The 8th Edition of Black’s Law Dictionary (Black's Law Dictionary,

2004) defines earning capacity as “a person’s ability or power to earn money, given the person’s

talent, skills, training and experience.” Horner and Slesnick (1999) defined earning capacity “as

the expected earnings of a worker who chooses to maximize the expectation of actual earnings”

(p.15). Shahnasarian (2004) presented a concise definition of earning capacity, stating “earning

capacity refers to an individual’s ability to optimize her or his employment efforts and maximize

earning” (p.3).

One of the most important factors in evaluating a loss of earning capacity is the venue in

which the legal action takes place (Field, 2008). Because of the inherent variability within and

among venues, assessment of earning capacity cannot be reduced to what Choppa and Johnson

(2008) referred to as a "paint by number" methodology. In other words, a method or protocol

applied in evaluating earning capacity in one venue is likely not able to be applied universally

across all matters either within or between venues. This reality of forensic vocational

rehabilitation practice has been complicated in recent years, as expert opinions in general have

begun to come under greater levels of scrutiny under rule 702 of the Federal Rules of Evidence

(Daubert v. Merrell Dow Pharmaceuticals, 1993; General Electric Co. v. Joiner, 1996; Kumho

Tire Co. v. Carmichael, 1999; U.S House of Representatives, 2009). With respect to the

testimony of experts, rule 702 states,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an

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expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case (U.S House of Representatives, 2009).

As noted in Rule 702, an otherwise qualified expert witness may provide expert testimony

only if a three prong test is satisfied. First, the expert’s testimony must be based upon sufficient

facts or data. In the first phase of the rehabilitation process, the vocational evaluation

establishes the foundation upon which subsequent phases are carried out. It is the vocational

evaluation from which the consultant extracts the facts and data to which subsequent methods

and protocols are applied. Failure to conduct a thorough evaluation at the front end of the

vocational rehabilitation process may place resultant opinions of earning capacity in jeopardy

due to a lack of sufficient foundation.

The second and third prongs of rule 702 speak to issue of the expert’s testimony being the

product of reliable principles and methods, and of the application of the principles and methods

in a reliable manner consistent with the facts of the case at hand. In interpreting rule 702, the

courts look to case law for guidance. For nearly seventy years, civil courts in the United States

looked to the case of Frye v. United States (Frye vs. United States, 1923) for guidance in the

admissibility of expert testimony. Simply stated, Frye held that if expert testimony was based on

methods “generally accepted” in the relevant professional field of knowledge, it would be

admissible. This standard changed in 1993, when the United States Supreme Court ruled in the

hallmark matter of Daubert v. Merrill Dow Pharmaceuticals (Daubert v. Merrell Dow

Pharmaceuticals, 1993). In the Daubert case, the court ruled that the Frye standard was no

longer to be the standard. The Daubert decision outlined four primary considerations for the

admissibility of expert testimony that included:

• Whether a theory or technique from which evidence is drawn has been tested

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• Whether the theory or technique has been subjected to peer review and publication • Whether the theory or technique has a known potential rate of error or standards • Whether the theory or technique used has been generally accepted

In large part, Daubert provided clear guidance for the admission of “scientific” testimony,

but did not provide the necessary flexibility inherent in non-basic science disciplines such as the

social sciences. In the 1997 United States Supreme Court decision of General Electric v. Joiner

(General Electric Co. v. Joiner, 1996), the high court affirmed the responsibility and discretion of

the judge in serving as the “gatekeeper” in either allowing or not allowing the testimony of an

expert. The Daubert standards were further expanded upon with the 1999 decision in the case of

Kumho Tire Co. v. Carmichael (1999). The Kumho Tire case allowed for “considerable leeway”

in scrutinizing the proposed testimony of experts (Field & Choppa, 2005). Unlike the Daubert

ruling which relied upon analyzing an expert’s testimony within the context of the scientific

method, the Kumho ruling provided guidance to the courts in evaluating an expert’s “technical or

specialized knowledge” for admissibility. The concept of analyzing “technical or specialized

knowledge” as described in rule 702, allowed for the introduction of testimony that is not

entirely dependent upon the scientific method. Such is the case in the social sciences and in

particular, the field of vocational rehabilitation where the testimony of vocational experts would

possibly not meet any one or more of the four primary Daubert considerations.

Vocational Earning Capacity and Forensic Damages

In many litigated settings, the end result of the litigation process is a determination of

injuries or damages sustained by a claimant or plaintiff (Neulicht & Constantini, 2002). Often,

economic damages caused by a loss or reduction in a person’s ability to earn wages or a salary

can be significant and represent a large proportion of the total damages sought to be recovered

(Cohen & Yankowski, 1998). In most courts of law, damages from lost wages due to an injury

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or death are measured by an earning capacity standard rather than an actual or expected earnings

standard (Horner & Slesnick, 1999).

An actual earning standard would only acknowledge the historical earning record of a

person and would not be prospective. According to Horner and Slesnick (1999), actual earnings

are best conceptualized as a “series of outcomes of a complex stochastic process involving the

interaction of a person’s abilities and preferences with the needs of employers” (p.14). An

expected earnings standard is simply “a series of earning figures, which are the expected values

of actual earnings in the corresponding time periods” (p.14) (Horner & Slesnick, 1999).

Expected earnings rely on a more mathematical solution and therefore are not directly

observable. Because of the mathematical foundation of this standard, it does not account for

changes in future earnings that are influenced by the unique vocational factors of the individual-

namely the individual’s abilities, available work opportunities and the individuals vocational

orientation toward future work. Reliance on a person’s past vocational decisions to project

future vocational course can be flawed-particularly in cases involving injury or a reduction in

functional capacity for future work.

Using an earning capacity standard, the expert’s opinions will consider expected earnings

of a worker who chooses to maximize their actual earnings. Therefore, earning capacity is not

normally affected by voluntary choices made by the worker regardless of whether they choose to

exercise their inherent abilities or not. Because of the importance that earning capacity plays in

the calculation of damages, the ability to reliably and validly predict a person’s future earning

capacity is critical.

Despite numerous methods and protocols published in peer reviewed journals and

textbooks (Andrew, 2004; Cohen & Yankowski, 1998; Drummond, 1996; Drummond & Ryan,

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1995; Field, 1993; Havraneck, 2007; Havraneck, Field, & Grimes, 2001; Power, 2006; Roessler

& Rubin, 2006; Rubin & Roessler, 2008; Shahnasarian, 2004; Weed & Field, 2001;

Wattenbarger & McCroskey, 2004; Sawyer, October, 2002), there remains a high level of

variability in the final evaluation product of vocational consultants. In particular, the variability

appears to be in the underlying foundation of variables considered in arriving at vocational

conclusions.

In an investigation of attorney opinions of vocational rehabilitation consultant

methodologies, Shahnasarian and Lassiter (2002) found attorneys have little confidence in the

objectivity or consistency of methods used by forensic vocational rehabilitation consultants. In a

study of variables considered by vocational consultants in preparing vocational reports,

Robinson, Young & Pomeranz (2009), identified significant variability in variables documented

by consultants in written reports outlining their conclusions. In a qualitative content analysis of

30 vocational rehabilitation reports across a range of venues, the authors identified 234 unique

variables, but only 22 were found to occur in greater than 50% of the reports. This suggests a

low level of methodological reliability in terms of variables documented by vocational

consultants across evaluation settings.

The study by Robinson et al. (2009) demonstrated a need for research to clarify core

variables to be considered by rehabilitation consultants in developing opinions of vocational

earning capacity. By identifying core variables, progress may be made towards contracting the

degree of variability in opinions, thus improving reliability and defensibility. Variability in

opinion and methodology is particularly problematic in legal-forensic settings where vocational

consultants retained by opposing parties routinely evaluate the same data and apply peer

reviewed methods, yet arrive at incongruent or contradictory opinions. Grimes (2008), suggests

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that a lack of consensus about the theory of earning capacity, may be related to the application of

rehabilitation theory in adversarial settings where parties have competing interests. In a recent

literature review by Shahnasarian (2008), a paucity of empirically-based research related to

earning capacity assessment was identified. Shahnasarian (2008) opined that a “more highly

evolved” literature base would help to control the issue of incongruent expert opinions derived

from a common fact pattern.

Research Question

What are the core variables to be considered in an assessment of vocational earning

capacity in a legal-forensic setting? By researching this question, it is expected that the high

level of variability often observed in the opinions of earning capacity opinions may be

contracted.

24

CHAPTER 2 LITERATURE REVIEW

The assessment of disability as it relates to vocational functioning involves the evaluation

of multiple domains of variables. Social, economic and political influences all contribute to how

the concept of vocational disability is viewed and defined by professions, organizations and

institutions. Because of the varying perspectives held toward the concept of disability, several

models have been postulated over the years to explain the various conceptions of disability and

the phenomena that contribute to its presence, pervasiveness and resolution. According to Jette

(1994), conceptual disability schemas help researchers define and identify interrelationships

between variables that contribute to disablement. Similarly, the multiple variables that

contribute to disablement, also impact a person’s vocational functioning both presently and

prospectively. This investigator will seek to identify core variables to be considered in an

assessment of vocational earning capacity in a legal-forensic setting.

Models of Disablement

For nearly 30 years, two major theoretical disablement models were widely applied around

the world (Jette, 2009). These included the International Classification of Impairment, Disability

and Handicap (ICIDH) proposed by the World Health Organization (WHO) (World Health

Organization, 1980) and Nagi’s Disablement Model (Nagi, 1965). In 2001, the 54th World

Health Assembly adopted the International Classification of Functioning, Disability and Health

(ICF) model after four years of field beta testing (World Health Organization, 2001). Prior to

development of the ICF, models had focused principally on the traditional medical model to

classify disease and disability (Betters & Shaw, 2008). While the early Nagi and ICIDH models

included social variables, both were unidirectional. The new ICF model integrated medical and

social models into a bio-psychosocial model that synthesized biological, individual and social

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perspectives (Reed, Lux, Bufka, Peterson, Threats, Trask et al., 2005; World Health

Organization, 2001). Unlike the models that preceded it, the ICF model structurally

acknowledged the multivariate and bi-directional nature of disabling health conditions. In other

words, interventions targeted, or not targeted, at a particular domain could directly influence

other domains within the ICF model (Betters & Shaw, 2008).

The ICF model includes two major theoretical health and health related components for the

conceptualization of functioning and disability. The first domain is comprised of body functions

and structures (World Health Organization, 2001). The World Health Organization (2001)

defines the human organism in its entirety as the "body". Body “functions” refer to the

physiological functioning of body systems. Body “structures” then refer to the individual

anatomical parts and organs that make up the systems of the body (World Health Organization,

2001).

Dysfunction within a body structure or function results in an impairment, which must be

differentiated from any underlying pathology (Leyshon & Shaw, 2008; Peterson, 2005; World

Health Organization, 2001). The presence of an impairment does not inevitably or automatically

suggest that a medical disease or pathology is present or that a person should be viewed as

“sick”. For example, the loss of an eye, hand or foot, would result in impairment, but does not

suggest the presence of a disease process (World Health Organization, 2001). Impairment in

body structure can involve an anomaly, defect, loss or significant deviation from the norm.

Impairments are best characterized as manifestations of pathology rather than pathology in and

of itself (World Health Organization, 2001). The presence of impairment is necessarily

causative, but the cause may not be sufficient to fully explain the resulting impairment (World

Health Organization, 2001). According to the World Health Organization (2001), impairments

26

may be temporary or permanent; progressive, regressive or static; intermittent or continuous.

Evaluation of impairment is performed by qualified medical and allied medical professionals

pursuant to established professional standards of care and clinical guidelines (World Health

Organization, 2001).

The second major component of the ICF model is Activities and Participation. Activities

and participation address the full range of domains symbolizing aspects of functioning from the

perspective of the individual and society (World Health Organization, 2001). The World Health

Organization (2001) defines “activities” as carrying out a task or action and represents a person’s

individual functioning, while “participation” is defined as a person’s involvement in life

situations and represents the societal perspective of functioning.

The ICF model describes nine domains representing the full range of life areas. The

domains include learning and applying knowledge; general tasks and demands; communication;

mobility; self-care; domestic life; interpersonal; interactions and relationships; major life areas;

and community, social and civil life (World Health Organization, 2001). Activity and

participation restrictions are determined by comparing a person’s expected participation to that

of a person without an impairment within a cultural context (World Health Organization, 2001).

Disability then results from the interaction between a health condition (body function and

structure) and the context in which the person exists (activities and participation). If the

interaction results in less than the full range of participation or function, then the person is

considered to have a disability (Schneidert, Hurst, Miller, & Ustan, 2005). Peterson (2005)

describes the relationship similarly stating “disability refers to impairment, activity limitation, or

participation restriction resulting from the complex interaction between a health condition,

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personal factors and external factors represented by the circumstances in which the person lives”

(p.106).

Vocational Capacity Determination

The ICF is a practical model that focuses on both physical structure and activities and

participation of the whole person within an environmental context (Scherer & DiCowden, 2008).

The ICF activities and participation domains generally consider what is referred to in the

professional and legal literature as major life activities. Federal regulations use the term "major

life activity" to describe functions such as walking, sitting, standing, seeing, hearing, breathing,

speaking, performing manual tasks, caring for one’s self, learning and working (Poitras Tucker

& Milani, 2004). In a multi-national study on the importance of life functions, Harpaz (1999)

found that work was second in importance only to family activities. Further, the importance that

work plays in the lives of people has been empirically demonstrated (Brief & Nord, 1990;

Mannheim, 1993). Super (1976), defines work as “the systematic pursuit of an objective valued

by oneself (even if only for survival) and desired by others; directed and consecutive, it requires

expenditure of effort” (p.20). Work may be performed for compensation or be uncompensated

such as with the case of volunteer or avocational pursuits (Super, 1976). Super (1976) found that

work may be performed for any number of reasons such as the intrinsic enjoyment of the work

itself; the structure given to life by participating in work activities; or the type of leisure activities

able to be enjoyed as a result of performing work activities.

Impairments in body functions and structure often limit a person’s ability to participate in

activities and limit full participation in work. According to Schneidert et al. (2005), occupational

impairment can stem from any number of interactions within the ICF model.

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Interactions may take any of a number of forms such as

• problems at the body level (impairment) and no activity (person) limitations or participation (societal) restrictions;

• problems with functioning in all three levels-impairments, activity and participation;

• an impairment and activity limitation, but no participation restriction;

• no impairment, but the presence of an activity limitation and participation restriction;

• no impairment or activity limitations, but the presence of a participation restriction (Schneidert et al., 2005).

Poitras & Milani (2004) reported the determination of vocational capacity is a highly

complex issue. It was in part, the complexity of evaluating an individual’s work limitations

within the context of the real world of work that helped bring about the field of vocational

rehabilitation and evaluation in the early twentieth century (Roessler & Rubin, 2006) with the

passage of the War Risk Insurance Act of 1914 (Weed & Field, 2001) and later the Smith-Fess

Act in 1920(Roessler & Rubin, 2006).

Genesis and Evolution of Vocational Rehabilitation and Evaluation

Since the genesis of vocational rehabilitation and evaluation, substantial literature

contributions have been made to describe factors and issues relevant to determining a person’s

vocational capacity. According to Walker and Heffner (2009), vocational capacity assessment

of a disability involves describing how an impairment effects or influences vocational

functioning. This evaluation process is the domain of vocational experts and disability

evaluators. Nadolsky (1971)described vocational evaluation as a process intended to predict

work behavior and vocational potential through the application of vocational rehabilitation

techniques and procedures. Dowd (1993) reported the most commonly referenced definition of

vocational evaluation scope and practice was provided by the Vocational Evaluation and Work

Adjustment Association (VEWWA), now known as the Vocational Evaluation and Career

29

Assessment Professionals Association (VECAP). Vocational evaluation is defined as a process

that systematically uses real or simulated work as the focal point for assessment and career

exploration. The evaluator synthesizes data from all team members, including if necessary,

medical, psychological, economic, cultural, social and vocational information (Vocational

Evaluation and Career Assessment Professionals, Retrieved 9/15/2010).

As the field of vocational rehabilitation and evaluation has developed, the profession has

evolved into three distinct sectors (Brodwin, 2008). Brodwin (2008) broadly described these

sectors as the public sector, the private non-profit sector, and the private for-profit sector.

Traditional vocational rehabilitation has its earliest roots in the public and private non-profit

sectors serving veterans, the mentally ill and the blind (Weed & Field, 2001). In response to

increasing costs for public sector rehabilitation efforts, during the early 1970s, the insurance

industry began to initiate private rehabilitation efforts aimed at cost containment and proactive

rehabilitation initiatives (Weed & Field, 2001). Since the early 1970s changing workers

compensation laws, reduced public rehabilitation funding, greater public awareness of the cost of

injured employees, and the general social attitude toward persons with disabilities, has helped

give rise to a robust private rehabilitation sector in the United States (Weed & Field, 2001).

From a practical perspective, there are significant differences between private and public

sector rehabilitation roles and goals. The primary focus of private sector rehabilitation effort is

typically on returning a person with a disability or injury to work, earning compensation similar

to what they were earning at the time of injury or in establishing vocational damages (Rasch,

1985). Private rehabilitation counselors work extensively in settings with the potential for

involvement in legal proceedings. Conversely, public sector efforts are more focused on

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assisting clients achieve maximum vocational potential (Rasch, 1985). The focus of this study is

on private sector for-profit forensic vocational earning capacity assessment.

Vocational Capacity Determination Venues

Private for profit vocational consultants focus much of their work on interpreting the

interaction between ICF domains. In other words, given a medically described impairment in

body function and / or structure, the private sector vocational consultant will evaluate how the

impairment interacts with the individuals engagement in activities and in social participation,

particularly with respect to work. Weiner (1986) discussed how individuals tend to “attribute”

successes and failures to a particular event by assuming a causative relationship exists. Often, it

is the case that the temporal order of events is assumed to have led to a cause and effect

relationship resulting in occupational disability. In actuality, there is rarely a direct cause and

effect relationship, but more commonly, a complex interaction of multiple factors such as pre-

existing medical conditions; social issues; psychological issues; lack of transferable work skills;

and economic factors (Walker & Heffner, 2009). Further, depending upon the venue in which

the assessment occurs, there is generally a regulatory, administrative or legal framework that

must also be considered by the consultant conducting the assessment.

Vocational capacity determination takes place in a broad range of venues. While private

sector vocational consultants may work in consultation with public sector rehabilitation

counselors, they most often work in workers compensation consultation, social security expert

consultation, and civil litigation consultation (Weed & Field, 2001). According to the NOLO

Legal Encyclopedia (September 15, 2010), a venue is defined as “the appropriate location(s),

according to law and court rules, for a trial”. With respect to assessment of loss of earning

potential in vocational capacity assessment, Field (2008), opined the venue for a matter is

perhaps the first and primary consideration in conducting vocational capacity assessments.

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Following is a brief discussion of the various venues in which vocational capacity assessment is

performed.

Venue One: Workers Compensation Expert Consultation

Within the workers compensation venue, statutes or regulatory frameworks can vary

significantly from state to state and between the various federal workers compensation programs.

Despite the variability across statutes and regulations, the U.S. Chamber of Commerce (1994),

described six common objectives of most state workers compensation laws:

• Providing sure, prompt, reasonable income and medical benefits to injured workers or income benefits to their dependents, regardless of fault

• Providing a single remedy and reducing court delays, costs, and workloads arising out of personal injury litigation

• Relieving public and private charities of financial drains

• Eliminating payment of fees to lawyers and witnesses as well as time consuming trials and appeals

• Encouraging maximum employer interest in safety and rehabilitation through appropriate experience rating mechanisms

• Promoting studies of causes of accidents, rather than concealment of fault, thereby reducing preventable accidents and human suffering

With the dawn of workers’ compensation laws in the United States in the early twentieth

century, employers were relieved of liability resulting from injuries arising out of and in the

course of employment (Field, 2008). In return, injured workers receive necessary medical

treatment, lost wages, and if allowed by the governing regulatory or administrative code within

the jurisdiction of the claim, vocational rehabilitation or retraining if unable to return to his or

her previous employment (Field, 2008).

Multiple vocational consultants may be involved in providing services targeted at

different constituencies involved in workers’ compensation. The injured worker may have a

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consultant providing statutory vocational rehabilitation and assessment services. Additional

vocational rehabilitation consultants, representing the claimant and the defendant in the matter,

may be involved by providing a combination of services focused on re-employment and / or

forensic expert services in preparation for litigation. Vocational capacity assessment in workers

compensation typically gives principle consideration to evaluating an injured worker’s post

injury vocational potential and earning capacity in contrast to their pre-injury level of vocational

attainment and ability to earn wages. Once the analysis is completed, statutory and regulatory

frameworks determine how the matter is administered. Some statutes allow for the payment of

ongoing wage loss payments if post-injury earning capacity does not equal the injured worker’s

pre-injury earning capacity (Longshore and Harbor Worker Compensation Act, 1984). Under

such statutes, vocational capacity determination focuses on the comparative difference between

pre and post-injury earning capacity. Other statutes use models that place greater weight on

physical function and impairment versus ongoing indemnity based upon a reduced earning

capacity. As an example, the standard for permanent and total disability claims in Florida, is that

an injured worker be unable to perform sedentary work within a 50 mile radius of their home

(Florida Administrative Code, 440.15(1)(b)). Therefore, the focus of vocational capacity

determination in Florida workers’ compensation is based on whether the injured worker retains

the post injury physical and cognitive capacity to perform at least sedentary work.

Venue Two: Social Security Expert Consultation

The second venue where vocational capacity assessments are performed is within the

Federal Social Security System. The Social Security Administration (SSA) reports the average

20 year-old worker has a 30% chance of becoming disabled prior to reaching normal retirement

age (U.S. Social Security Administration, 2009). For persons who become disabled, the SSA

administers two disability programs. The smaller of the two programs is Supplemental Security

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Income (SSI) (Field, 2008). SSI provides monthly payments to people with low income and

minimal resources and who are blind or disabled (U.S. Social Security Administration, 2007).

The second program is Social Security Disability Insurance (SSDI) which is generally

considered to be the “granddaddy” of vocational capacity determination (Field, 2008). SSDI is

the source of a great deal of foundational data and administrative acknowledgement of the

impact of various occupational impairments upon a person’s ability to work (Field, 2008). SSDI

pays a monthly benefit to beneficiaries who are unable to work because of a medical condition

that is expected to last at least one year or result in death (U.S. Social Security Administration,

2009).

Both programs use the same five step sequential evaluation process to evaluate whether a

person meets the regulatory definition of “disability”. The Federal Code of Regulations define

disability in terms of both medical and vocational elements (Traver, 2006). The medical element

of disability is defined as the “inability to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than 12

months” (Code of Federal Regulations, 20 CFR § 404.1505). The vocational element of the

regulations read “an individual shall be determined to be under a disability only if his physical or

mental impairment or impairments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education and work experience, engage in any

other kind of substantial gainful work which exists in the national economy” (U.S. Social

Security Administration, 1985).

Unlike workers’ compensation programs that were discussed in the previous section, social

security vocational capacity assessment does not consider the issue of earning capacity (Field,

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2008). To answer the question of whether a person meets the regulatory definition of disability,

a five step sequential evaluation process is utilized that are followed in mechanical order to

arrive at a decision as to whether a person meets the definition of “disability”. Each step is

analyzed in order and a conclusion drawn before the process proceeds to the next higher step. A

determination that a claimant is under a “disability” can only be made at step three or five.

At the first step, a determination is made as to whether a person is performing “substantial

gainful activity.” Substantial gainful activity is defined in the regulations as work activity that is

both “substantial” and “gainful” (Code of Federal Regulations, 20 CFR § 404.1572). Substantial

work activity involves performing significant physical or mental activities (Code of Federal

Regulations, 20 CFR § 404.1572). Work may be considered substantial even if it is performed

on a part time basis; is physically or mentally less demanding; results is lesser pay; or requires a

lesser degree of responsibility than work previously performed (Code of Federal Regulations, 20

CFR § 404.1572). Gainful work activity is activity that is performed for pay or profit, or activity

that represents the kind of work usually done for pay or profit, whether or not a profit is actually

realized (Code of Federal Regulations, 20 CFR § 404.1572). If a determination is made that a

person is performing substantial gainful activity, then the person will be found “not disabled”.

If the person is not engaged in substantial gainful activity, the sequential evaluation proceeds to

step two.

At step two, consideration is given to the medical severity of the person’s impairments.

A person must have a severe medically determinable physical or mental impairment (Code of

Federal Regulations, 20 CFR § 404.1520) that meets at least one of three durational criteria

which include:

• expected to result in death;

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• has lasted for a period of twelve continuous months;

• or it is expected to last for a period of at least 12 continuous months (Code of Federal Regulations, 20 CFR § 404.1509).

This assessment generally considers an analysis of not only medical documentation, but

also considerations related to the person's ability to engage in activities and participate in social

venues (Traver, 2006). An individual’s symptoms may cause limitations and restrictions in

functioning which, when considered within the context of activities and participation will direct a

finding that there is a "severe" impairment(s) (U.S. Social Security Administration, 1996). As a

practical matter, Bush (2007), stated that once a person’s residual functional capacity is

demonstrated to be reduced, then a requirement to demonstrate a “severe impairment” exists has

been satisfied. If the person is found not to have a severe impairment, the sequential evaluation

process will be terminated and the person will be found “not disabled”. If the person is found to

have a severe impairment, the sequential evaluation proceeds to step three.

At the third step, impairments are considered within the context of the medical listings as

specified in the regulations (Code of Federal Regulations, 20 CFR § 404, Appendix 1 of subpart

P). The medical listings are best described as a set of medical criteria representing body systems

and structures. The medical listings are divided into 14 sections that include musculo-skeletal

system; special senses and speech; respiratory system; cardiovascular system; digestive system;

genitourinary impairments; hematological disorders; skin disorders; endocrine system;

impairments affecting multiple body systems; neurological; mental disorders; malignant

neoplastic diseases; and immune system disorders (Code of Federal Regulations, 20 § CFR 404,

Appendix 1 of subpart P). A conclusion at step three requires medical input since conclusions at

this step are entirely medically oriented. This is the first step in the five step sequential

evaluation where a claimant could be found disabled in which case, the sequential evaluation

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would stop. In the case where a medical conclusion is drawn that a claimant does not meet or

equal a medical listing, the sequential evaluation proceeds to step four. A step three

determination is necessary in every case, however, unless medical input is provided, the

vocational consultant must defer any opinions at this step to avoid the risk of potential ethical or

legal conflict with practicing outside of one’s scope of professional practice (Commission on

Rehabilitation Counselor Certification, Retrieved April 12, 2011).

At the fourth step, consideration of disability moves to an evaluation of the claimant’s

impairments and how the impairments impact his or her ability to engage in activities and

participation within the context of their past relevant work. Prior to this step, a medical

determination must be made regarding the full scope of the claimant’s physical and mental

impairments which, in composite, comprise the claimant’s residual functional capacity profile

(U.S. Social Security Administration, 1996b). The functions analyzed in arriving at a residual

functional capacity include physical issues, aptitudes, temperaments, and environmental

impairments. Physical considerations include exertional and non-exertional demands.

Exertional demands include standing, walking, sitting, lifting, carrying and pushing, and jointly

make up the strength domain of physical demands. Aptitudes are defined as capacities or

specific abilities an individual must have to learn to perform a given work activity (U.S.

Department of Labor, 1991b). Temperaments are defined as the worker’s ability to adapt to the

requirements of a particular job (U.S. Department of Labor, 1991b). Table 2-1 outlines the

ratable physical, environmental, aptitude and temperament demands of work as considered in

social security adjudication (U.S. Department of Labor, 1993).

Once an analysis is made of the claimant’s function by function residual functional

capacity, their work history over the previous 15 years is classified. The position of the Social

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Security Administration is that a gradual change is likely to occur over a period of years so that

after a certain amount of time, it is no longer realistic to assume that skills learned in the remote

Table 2-1. Worker traits considered in social security claim adjudication Physical Environmental Aptitude Directing Strength Exposure to Weather General Learning

Ability Directing, controlling, or planning activities of others

Climbing Extreme Cold Verbal Aptitude Performing repetitive or short cycle work

Balancing Extreme Heat Numerical Aptitude Influencing people in their opinions, attitudes, and judgments

Stooping Wet and / or Humid Form Perception Performing a variety of duties

Kneeling Noise Intensity Clerical Perception Expressing personal feelings

Crouching Vibration Motor Coordination Working alone or apart in physical isolation from others

Crawling Atmospheric Conditions

Finger Dexterity Performing effectively under stress

Reaching Proximity to Moving Mechanical Parts

Manual Dexterity Attaining precise set limits, tolerances, and standards

Handling Exposure to Electrical Shock

Eye-Hand-Foot Coordination

Working under specific instructions

Fingering Working in High, Exposed Places

Color Discrimination Dealing with people

Feeling Exposure to Radiation Making judgments and decisions

Talking Working with Explosives

Hearing Exposure to Toxic or Caustic Chemicals

Tasting / Smelling Other Environmental Conditions

Near Acuity Far Acuity Depth Perception Accommodation Color Vision Field of Vision

38

past, continue to apply to the present labor market (Code of Federal Regulations, 20 CFR §

404.1565). A claimant’s work history is classified by skill level and physical demand and

compared to the residual functional capacity profile. A decision is then made whether the

claimant retains the capacity to return to his or her past relevant work. A three prong test has

been developed for making this assessment (U.S. Social Security Administration, 1982):

• Does the claimant retain the capacity to perform a past relevant job based on a broad generic, occupational classification such as a “delivery job”;

• Does the claimant retain the capacity to perform the particular job as he or she actually performed it;

• Does the claimant retain the capacity to perform the functional demands and job duties of the job as ordinarily required by employers in the national economy (this determination is made utilizing the Dictionary of Occupational Titles) (U.S. Department of Labor, 1991)?

If a claimant is determined to be capable of returning to their past relevant work at step

four, then the sequential evaluation process stops and the claimant is found to be “not disabled”.

However, if the claimant is unable to return to his or her past relevant work, the sequential

evaluation proceeds to the fifth and final step in the evaluation process.

At this juncture, the question becomes whether the claimant is capable of performing

“other work” that exists in the national economy. Assessment at step five focuses on the

claimant’s residual functional capacity as established in step four, in concert with the claimants

age, level of education, and skills acquired from their past relevant work over the preceding 15

years (Code of Federal Regulations, 20 CFR § 404.1520). At step five, the Social Security

Administration provides direct adjudicative guidance in the form of the Medical-Vocational

Guidelines (Code of Federal Regulations, 20 CFR 404, Appendix 2 to Subpart P). Where the

particular findings of a claimant’s vocational factors and functional capacity perfectly coincide

with a medical-vocational rule, then the rule would direct a finding of “disabled” or “not

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disabled” accordingly (Code of Federal Regulations, 20 CFR 404, Appendix 2 to Subpart P).

However, if the factors of a particular case do not precisely coincide with a particular rule, then

the medical-vocational guidelines are to be applied as a framework for adjudicative decision

making (U.S. Social Security Administration, 1983). The medical-vocational guidelines

consider only exertional impairments which are defined as sitting, standing, walking, lifting, and

carrying (U.S. Social Security Administration, 1983). Therefore, if an impairment is not

exertional in nature, then by definition, it must be non-exertional (U.S. Social Security

Administration, 1983).

If the particular factors in a claim do not precisely align with a specific medical-vocational

rule, then the step five evaluation proceeds to applying the known vocational factors to answer

the question as to whetherthe claimant can perform other work that exists in the national

economy in significant numbers. Ultimately, if a determination is made that the claimant is

unable to perform other work that exists in the national economy in significant numbers, the

claimant will be found “disabled”. If the claimant is found to be able to perform other work, the

evaluation will terminate in a finding of “not-disabled”. In either case, the sequential evaluation

process will terminate at step five.

Venue Three: Civil Litigation Forensic Consultation

In the civil litigation venue, a legal action normally revolves around the issues of whether

the plaintiff has incurred an economic loss and what the extent of the loss is, and whether the

defendant in the matter is responsible for the loss (Havraneck, 2007). The vocational consultant

is most typically involved in the former question.

According to Shahnasarian (2004), central vocational questions in this venue include

determinations of

• pre-incident (injury) earning capacity and skills;

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• residual functional capabilities and limitations; • transferable skills, and need and capacity for retraining; • costs of retraining (if applicable); • presence of acquired vocational handicaps; • post-incident (injury) earning capacity; • loss of earning capacity; • mitigation efforts; • future rehabilitative needs.

Pre-injury earning capacity and skills are essential vocational elements in forensic civil

consulting. Pre-injury earning capacity is referred to most commonly as the base wage. Field

(2008) describes the base wage as the starting point used by the forensic economist in estimating

lifetime vocational loss or damages resulting from injury. Assessment of skills in the civil venue

is precisely the same as the venues previously discussed. Assessment of acquired work skills is

essential as a person’s past relevant work is commonly viewed as a principle predictor of future

employment potential (Field, 2008). Only through a thorough assessment of pre-injury earning

capacity and skills, can the consultant ultimately arrive at a conclusion regarding likely incurred

changes in post-injury earning capacity (Shahnasarian, 2004).

Residual functional capacities and limitations serve as a critical data element in being able

to draw a conclusion regarding the suitability of employment post-injury. This information is

crucial to making a vocational rehabilitation determination as to whether a plaintiff is able to

return to work either in a past job or in other occupations consistent with his or her post-injury

residual functional capacity and acquired work skills.

Once a determination is made that a plaintiff is unable to return to their past work,

attention is then directed toward identifying alternative employment that exists based upon their

transferable work skills. According to Shahnasarian (2004), the focus of the assessment at this

juncture is on analyzing the comparative differences between the plaintiff’s pre-injury earning

capacity (base wage) and the earning capacity associated with occupations that remain within

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the plaintiff’s residual functional capacity profile. If a plaintiff is found not to have transferable

skills, assessment is then directed toward their potential and capacity for engaging in a program

of vocational re-training. If retraining is required, associated costs and fees are determined

(Shahnasarian, 2004).

In the course of a civil litigation action, a plaintiff has a responsibility to mitigate damages

or losses attributed to the actions of the defendant. Mitigation requires that a plaintiff pursue

reasonable activities to minimize career development impact or earning capacity damage

(Shahnasarian, 2004). According to the NOLO Legal Encyclopedia (September 16, 2010),

mitigation of damages is defined as“the requirement that someone injured by another's

negligence or breach of contract must take reasonable steps to reduce the damages, injury, or

cost, and to prevent them from getting worse”. The vocational consultant should analyze

vocational mitigation efforts the plaintiff has pursued to determine the level of due diligence

demonstrated in attempting to ameliorate vocational damages or losses.

In the end, the forensic vocational consultant may be asked to render opinions of any

incurred loss of earning capacity as well as future rehabilitative needs. Establishment of future

rehabilitative care needs is often accomplished through the development of a life care plan. As

cited by Weed (2010), a life care plan is “a dynamic document based upon published standards

of practice, comprehensive assessments, data analysis and research, which provides an organized

concise plan for current and future needs with associated costs for individuals who have

experienced catastrophic injury or have chronic health care needs” (p.3).

Standard of Evidence

The principle difference in consulting within the civil venue versus administrative venues

(workers’ compensation and social security disability), is the standard to which opinions are

subject to legal scrutiny. In essence, the opinions expressed by vocational consultants are

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presented as evidence and as such, are subject to legal scrutiny under the Federal Rules of

Evidence, rule 702 which read:

If scientific, technical, or

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