Vocational Rehabilitation Experts in the Litigation Context

1 Vocational Rehabilitation Experts in the Litigation ContextPresented by Scott HaworthMarch 22, 2011 PART ONEWHAT DO THEY DO? Vocational Rehabilitation DefinedMedical,psychological,socialandoc cupationalactivitiesaimedatre-establishi ngtheworkingcapacityofsickorinjuredpeopl ewithpreviousworkhistory,andre-establish ingtheprerequisitesforreturningtothelabo rmarket( ).-The Journal of Rehabilitation MedicineQualifications 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 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.

2 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 CapacityProcess 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.

3 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 Department of LaborTesting 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)

4 Other Areas Tested Reading Spelling Arithmetic Grip Strength Identify One of Four Skill Levels Identify Physical CapabilityPART TWOVOCATIONAL Rehabilitation IN THE COURTROOMP laintiff s Use of Vocational Rehabilitation Experts Bridge The Gap Physical InjuriesEconomicDamagesEquateInjuriestoW ageLossServeasBasisforMajorComponentofEc onomicLossClaimIs 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/QualificationsNew York State Court: Generalacceptance , ( ):whethertheacceptedtechniques,whenprope rlyperformed, , (3dDep ).

5 Federal Court: Gatekeeper ,Inc., (1993),toensurethatascientificexpert stestimony restsonreliablefoundationandisrelevantto thetaskathand, : Factors:(1)whetheramethodconsistsofatest ablehypothesis;(2)whetherthemethodhasbee nsubjecttopeerreview;(3)theknownorpotent ialrateoferror;(4)theexistenceandmainten anceofstandardscontrollingthetechnique's operation;(5)whetherthemethodisgenerally accepted;(6)therelationshipofthetechniqu etomethodswhichhavebeenestablishedtobere liable;(7)thequalificationsoftheexpertwi tnesstestifyingbasedonthemethodology;and (8) an Economist Plaintiffinjuredhisbackwhilelifting40-po undcinderblocks. [P]laintiff svocationalrehabilitationexpertwasnotqua lifiedtoexpressanopiniononpastandfuturel ossofearnings,pastandfuturelossofhouseho ldservicesandfuturemedicalexpenses.

6 [thesedamages],allofwhicharegenerallythe subjectofexperttestimonybyaneconomist. , (4thDep t2003)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.

7 Donaldson v. Ryder Truck Rental, 737 750 (Sup. Ct. Niagara Cty. 2001) But see Coniker v. State of New York, 2002 WL 32068270 ( 2002) wherein Court considered life care plans of Richard Schuster and Wendy Cummings No Foundation Plaintiff sexpertfailstopresentanythingmorethanuns ubstantiatedassumptionsaboutplaintiff ,withoutanydegreeofmedicalcertainty,that plaintiff s abilitytoaccessthehigherpaidmanuallaborj obsarelikelytobenegativelyimpactedbydeve lopmentofrenaldiseasefurther. Thisisnothingmorethanconjectureaboutthes tateofplaintiff sdiseaseandtheeffectsitwillhaveonhisfutu re. ,Inc., ( )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?

8 Coordination with Treating Physicians Missing Medical Records/Portions of Records Ignored Medical Records School Records Employment Files Union Records Other Lawsuits Criminal HistoryInterview 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. TestimonyTesting 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 ResultsPsychiatric Overlay Post-Traumatic Stress Disorder Depression Egg Shell Skull Plaintiff (10-10-80) Post-Concussion Syndrome MRI CAT Scan PET Scan EEGO verall Consistent Issues Rely on Statistics Call any Potential Employers Identify for Jury a Single Person or Business Willing to Hire Plaintiff?

9 No follow-upDefendant sUse of Vocational Rehabilitation ExpertsGoals Demonstrate Ability to Work Undercut Plaintiff s Vocational Rehabilitation or Economic Expert Mediation/ADRA lternative Means to Achieve Goals Use of as to Physical Injury Use of as to Psychiatric Claim (PTSD, Depression, etc.) Vocational Rehabilitation Expert as a Consultant Cross-Examination/DepositionSome 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?

10 Have you evaluated your risk? Prior testimony/Prior Reports problems related to Experts playing one side or both sidesDon 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 MindNegative Report Undermines Goal Bolsters Plaintiff s Case Expert can be used against you Adverse InferenceCross-Examination 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 InjuryPART THREEINTERPLAY BETWEEN THE Vocational Rehabilitation EXPERT & THE ECONOMISTO verall Questions for the Economist Did economist form an independent opinion regarding Vocational rehabilitations expert s conclusions?