Vocational Rehabilitation Experts

in the Litigation Context

Presented by Scott Haworth

March 22, 2011

PART ONE

WHAT DO THEY DO?

Vocational Rehabilitation

Defined

Medical, psychological, social and occupational

activities aimed at re-establishing the working

capacity of sick or injured people with previous work

history, and re-establishing the prerequisites for

returning to the labor market (i.e. to a job or

availability for a job).

- The Journal of Rehabilitation Medicine

Qualifications

• Psychologists

• Neuropsychologists

• Certified Rehabilitation Counselors

• Work Experience“I’ve been trained to work with people that have a variety of different

disabilities and handicaps. These could be physical disabilities, mental,

cognitive disabilities and what I do is I evaluate the individuals who have

these types of impairments and determine whether they’re capable of being

employed and if they are, what kind of work they can do given their various

capabilities…We took people who were essentially homebound and brought

them into our agency to counsel them, evaluate them to find out what they

could or could not do. We would provide them with some work adjustments,

some preparation for work and we would locate jobs they could do given

their various capabilities.”

Pertinent Considerations• Medical

– Physical Ability/Disability

– Orthopedic

– Neurological• Post-Concussion Syndrome

• Psychological

– PTSD, Depression

– Neuropsychological Issues

• Social

– Type of person plaintiff was before and after accident

• Occupational

– Employment History

– Aptitudes

– Return to Prior Job

– Potential Employment in Some Other Capacity

Process• Records Review

• Diagnostic Vocational Interview

• Administration of Vocational Tests

• Identify Employment Possibilities

– Department of Labor Categorization/Transferable Skills Analysis

– Dep‟t of Labor‟s Dictionary of Occupational Titles

– McCroskey Transferable Skills Program (MTSP); OASYS;

SkillTran

• Ongoing Assistance – counseling, retraining, etc.

– e.g. Vocational Services for Individuals with

Disabilities

5-Point Physical Demand Scale• Sedentary

– Sitting 6-8 hours/day & 10 lbs. or less

• Light Work

– Stand/walk 6-8 hours/day & 10-20 lbs.

• Medium Work

– Standing & walking/20-50 lbs. occasionally & 10-25 lbs.

frequently

• Heavy Work

– Standing & walking/50-100 lbs. occasionally & up to 50 lbs.

frequently

• Very Heavy Work

– Standing & walking/100 lbs. occasionally & 50 lbs. plus

frequently– U.S. Department of Labor

Testing• Perdue Peg Board (hands)

• Grooved Peg Board (hands/grooved pegs)

• Manual Dexterity Test (entire hand)

• Battery Finger Dexterity (5-part assembly)

• Battery Form Perception (visual inspection)

• Crawford Small Parts Test (tweezer/screwdriver)

• Verbal Comprehension (pick similar word)

• Visual Speed and Accuracy (visually compare 2 sets of

numbers)

• Survey Manual Speed (use of hands quickly and

accurately)

Other Areas Tested

• Reading

• Spelling

• Arithmetic

• Grip Strength

• Identify One of Four Skill Levels

• Identify Physical Capability

PART TWO

VOCATIONAL

REHABILITATION IN THE

COURTROOM

Plaintiff’s Use of Vocational

Rehabilitation Experts

“Bridge The Gap”

Physical

Injuries

Economic

Damages

Equate Injuries to Wage Loss

Serve as Basis for Major Component of Economic Loss Claim

Is This Vocational Rehabilitation?

• Clinical Services?

• Vocational Counseling?

• Psychological Counseling?

• Job Site Visit?

• Recommend Job Modifications?

• Recommend Assistive Devices?

Do anything to actually benefit quality of life

or enhance employment prospects?

Preclusion/Qualifications

New York State Court:

“General acceptance” standard -- Frye v. United States, 293 F. 1013 (D.C. Cir. 1923): whether the

accepted techniques, when properly performed, generate results accepted as reliable within the

scientific community generally. Page v. Marusich, 51 A.D.3d 1201 (3d Dep‟t. 2008).

Federal Court:

“Gatekeeper” factors identified in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993), to ensure that a scientific expert‟s testimony “rests on reliable foundation and is relevant to

the task at hand,” so as to comply with Fed. R. Evid. 702:

Factors: (1) whether a method consists of a testable hypothesis; (2) whether the method has

been subject to peer review; (3) the known or potential rate of error; (4) the existence and

maintenance of standards controlling the technique's operation; (5) whether the method is

generally accepted; (6) the relationship of the technique to methods which have been

established to be reliable; (7) the qualifications of the expert witness testifying based on the

methodology; and (8) the non-judicial uses to which the method has been put.

Not an Economist

• Plaintiff injured his back while lifting 40-pound cinder

blocks.

• “[P]laintiff‟s vocational rehabilitation expert was not

qualified to express an opinion on past and future loss of

earnings, past and future loss of household services and

future medical expenses.”

• “Nothing in the record…suggests that his area of

expertise includes assessing [these damages], all of

which are generally the subject of expert testimony by an

economist.”

Smith v. M.V. Woods Construction, 309 A.D.2d 1155 (4th Dep’t

2003)

Life Care Plans - Qualified?

• Psychiatry

• Orthopedist

• Urologist

• Neuropsychology

• Dermatology

• Nutritionist

• Medical Case Manager

• Speech Therapy

• Future Hospitalization

• Pain Management

• Diagnostic Testing

• Pharmaceuticals

• Durable Medical Equipment

• No

• No

• No

• ??

• No

• No

• ??

• ??

• No

• No

• No/??

• No

• No

• “While a vocational rehabilitation specialist may give

opinion testimony on employment opportunities based

on a labor market survey …, that rule should not be

extended to allow informal assessment of the need for

and cost of future medical procedures as plaintiff

suggests.”• Donaldson v. Ryder Truck Rental, 737 N.Y.S.2d 750 (Sup. Ct. Niagara Cty.

2001)

• But see Coniker v. State of New York, 2002 WL

32068270 (N.Y.Ct.Cl. 2002) wherein Court considered

life care plans of Richard Schuster and Wendy

Cummings

No Foundation

• Plaintiff was injured when he ingested E. coli-

contaminated beef.

• “Plaintiff‟s expert fails to present anything more than

unsubstantiated assumptions about plaintiff‟s decreased

earning potential…. She simply states, without any

degree of medical certainty, that plaintiff‟s „ability to

access the higher paid manual labor jobs are likely to be

negatively impacted by development of renal disease

further.‟ This is nothing more than conjecture about the

state of plaintiff‟s disease and the effects it will have on

his future.”Cillo v. IBP, Inc., 16 A.D. 3d 399 (1st Dept. 2005)

Attacking the Bases for Plaintiff’s Expert’s

Opinions (a/k/a “Garbage In/Garbage Out)

Medical Records– No Independent Evaluation

– What if Diagnosis/Prognosis Change?

– Coordination with Treating Physicians

– Missing Medical Records/Portions of Records

– Ignored Medical Records

– School Records

– Employment Files

– Union Records

– Other Lawsuits

– Criminal History

Interview• Length of Time

• Who Interview?

• Lawyer Present?

• Plaintiff Appear to Be:

– Attentive?

– Able to Answer Questions?

– Consistent With Records?

– Polite?

– Juxtapose With Performance Reviews/Depo.

Testimony

Testing• One result at one point in time

• Not same task as at job

• Effort-Dependent

• Malingering

– DSM IV

– Tests

– Going for Treatment/What do Records Say

• Compare/Contrast with Other Test Results

Psychiatric Overlay

• Post-Traumatic Stress Disorder

• Depression

• Egg Shell Skull Plaintiff (10-10-80)

• Post-Concussion Syndrome

– MRI

– CAT Scan

– PET Scan

– EEG

Overall Consistent Issues

• Rely on Statistics

• Call any Potential Employers

• Identify for Jury a Single Person or

Business Willing to Hire Plaintiff?

• No follow-up

Defendant’s Use of Vocational

Rehabilitation Experts

Goals

• Demonstrate Ability to

Work

• Undercut Plaintiff‟s

Vocational Rehabilitation

or Economic Expert

• Mediation/ADR

Alternative Means to

Achieve Goals

• Use of M.D. as to

Physical Injury

• Use of M.D. as to

Psychiatric Claim (PTSD,

Depression, etc.)

• Vocational Rehabilitation

Expert as a Consultant

• Cross-

Examination/Deposition

Some Issues to Consider

• Does plaintiff have an expert?

• Type of expert retained by plaintiff

• Ability to Cross-Examine Plaintiff‟s Expert?

• Plaintiff‟s Ability to Cross-Examine Your Expert?

• Dept. of Labor Job Descriptions

• What is the simplest route to the finish line?

• Have you evaluated your risk?

• Prior testimony/Prior Reports – problems related to

experts playing one side or both sides

Don’t Guess!

Will report help/hurt?

Not all about the report … is it

supported by the evidence?

Investigation

Plaintiff‟s Deposition

Non-Parties

Identify records good and bad

Is testing impeachable?

AVOID SURPRISE!

Maintain your CREDIBILITY!

Keep in Mind

Negative Report

• Undermines Goal

• Bolsters Plaintiff‟s Case

• Expert can be used

against you

• Adverse Inference

Cross-Examination

• A.D.A. Accomodation

• Unemployment

• Periods of Unemployment

• Time to Get Job

• Testified People with This

Injury Unable to Work

• Prepared Life Care Plan

for People with This Injury

PART THREE

INTERPLAY BETWEEN THE

VOCATIONAL

REHABILITATION EXPERT

& THE ECONOMIST

Overall Questions for the

Economist• Did economist form an independent

opinion regarding vocational rehabilitations

expert‟s conclusions?

• Did economist value economic loss based

on defense expert‟s view of employability?

• Overly Aggressive Economist + Strong

Defense Vocational Rehabilitation Report

= Very Different Economic Loss Picture

Typical Cross-Examination

Issues• W-2/Income Tax Returns

• Annual Wage Increases

• Statistical Sampling v. Reality

• Social Security Offset

• Unemployment/Offset for Unemployment

• Income taxes

• Job maintenance expenses

• Discount Rate/Present Value

QUESTIONS

COMMENTS

DISCUSSION