Within the litigation arena, there are multiple experts that are called upon to assist the trier of fact (the juror). One such expert called to testify by plaintiff and or defense is a vocational expert. Vocational experts (VEs) have expertise in being able to identify a person’s ability to work and earning capacity. When a person has a work history the vocational expert can use the plaintiff’s past work experience as a means to gauge future work and earnings.
When a person does not have a work history (a child or student who has not established themselves vocationally) the VE may use the person’s educational background and or intellectual functioning to give parameters as to what future work the person could have done if the person’s work potential was not interrupted by their impairment, catastrophic injury or untimely death.
Transferability, the capacity of a person’s transferring their past work and or training to future work is a common starting point for an assessment. A scientific approach used by some vocational experts is known as the VDARE process.
The VDARE Process is comprised of multiple parts: (a) initial collection of vocationally relevant background data; (b) tracing the client or plaintiff’s vocational history through the Dictionary of Occupational Titles; (c) review of the job title, trait-by-trait, to offer a Residual Employability Profile (REP); (d) formulating an evaluation plan to collect the necessary medical, psychological, social, educational, and vocational data needed to complete the REP; (e) selecting a reasonable vocational objective(s); (f) planning or recommending services if warranted, and (g) completing a report.
A vocational expert may or may not have other expertise (psychological or economic). In the absence of other expertise the vocational expert may rely on those opinions offered within a reasonable degree of certainty from another expert or the opinions of a treating provider (e.g. orthopedist, functional capacity evaluator, psychologist, neuropsychologist etc.). Combined with the plaintiff’s or client’s interview data, test findings when administered, the VDARE process, and other expert or treating provider(s) reports, the vocational expert can then offer an opinion within a reasonable degree of certainty.
It is typical that different sources of data of a local and national basis are researched in order to provide the most comprehensive analysis. A labor force survey may be performed if requested, where wages of a given job or career are detailed. The Bureau of Labor Statistics database may be one such resource along with others including state by state data and independent non-governmental sources.
The opinions offered may also include what the actual earnings, compared to expected earnings compared to earning capacity would have been in the absence of an injury or death. A person’s work life expectancy based on their gender, age, education, and whether they were or are presently working is also an area of expertise the VE is qualified to opine about.
Vocational experts have varying levels of experience (Bachelor to Ph.D. level) and hold varying certifications. The three most recognized affiliations for vocational experts include the American Board of Vocational Experts (ABVE), International Association of Rehabilitation Professionals (IARP) and American Rehabilitation Economics Association (ARENA).
The ABVE is the only nationally recognized certifying body of vocational experts. Many of the courts and the federal government recognize this credential as a qualifying certification for vocational testimony.
Vocational experts have jobs that provide service to persons, not in litigation, as well as applying for social security disability benefits. Vocational experts are located throughout the United States and Canada.
Vocational experts also offer their expertise to the federal government within the social security disability adjudication process. At a hearing, the judge, and the claimant’s attorney if they are represented will ask the claimant questions about their disability and questions about their work history. The vocational expert will then classify each of the claimant’s relevant prior jobs to determine whether they can do their past job given their reported disability. If the claimant cannot perform their past job the VE will offer an opinion about what transferable skills the claimant has to perform alternative work (the VDARE process mentioned above).
The vocational expert may be asked to testify as to what jobs if any, a claimant who has the work-related limitations described by an administrative law judge’s hypothetical could do. If the VE believes there are jobs the hypothetical person can perform, he or she will state the job titles, their Dictionary of Occupational Title code number, and the number of the jobs (including filled positions) in the area near where they live. If the vocational expert testifies that there are still jobs the claimant can do despite having work-related impairments, the claim for disability benefits will probably be denied.
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