Vocational Rehab Expert Opinion and Apportionment
A recent article in the Journal of Forensic Vocational Analysis (Van de Bittner, 2016)*, addresses a method for analyzing specific factors complicating wage earning capacity assessment after an accident or injury. Issues such as a pre-existing condition, subsequent injury, or other medical (physical or mental limitations) or vocational factors (illiteracy, limited education, training or skills, language barriers, felony convictions, geographic area, incentives) often complicate the assessment of future earning capacity.
Apportionment is the process of assigning a percentage to complicating factors that represents the degree to which each factor impacts future earnings. Apportionment can apply to plaintiffs in various venues such as worker’s compensation, in both state and federal systems, liability cases, medical malpractice, and any venue relating to personal injury and compensation. Van de Bittner’s article is specific to the California Worker’s Compensation System, however the issues are applicable to cases in other regions as well.
In simple terms, apportionment should be based on causation. If a condition exists pre-injury, or if there is a subsequent injury or medical or vocational factor, the Vocational Evaluator (VE) should assess the amount of loss of wage earning capacity both pre and post, outlining that portion that would be attributable to each scenarios to arrive at an accurate opinion.
Typically, mental or physical impairments are determined by a physician or other health professional. It is imperative that the plaintiff disclose any previous physical or mental impairments or other medical or vocational factors that could impact wage earning capacity. This information should be clearly documented in the vocational evaluation. The defendant is only liable for the loss of wage earning capacity or impairment caused by the current indexed injury. In the case of a plaintiff having been determined to be 100% disabled previously, no further disability can be found.
Physicians often are asked to provide a percentage of impairment according to the AMA Guides, however these percentages do not translate into loss of wage earning capacity or specific work restrictions. Physicians should be consulted regarding limitations assigned both pre and post the indexed injury.
Van de Bittner (2015) outlines the following process to assist the VE in developing opinions:
Request, obtain and review any medical, psychiatric, employment and related records and opinions regarding apportionment that will likely be relied upon by the court.
Interview the plaintiff regarding current, prior and any subsequent conditions and vocational factors and their impact on employability and wage earning capacity.
Conduct a transferable skills analysis to delineate the loss of employability and wage earning capacity related to any prior medical/vocational factors compared to any losses related to any current medical and vocational factors.
Pre-injury employability and wage earning capacity is then compared with post injury employability and wage earning capacity to determine any differences.
With this process, the VE should have a clear picture of pre and post employability and wage earning capacity.
*Van de Bittner, E. E. (2016). Vocational apportionment: An analysis of medical and vocational factors affecting apportionment of employability and earning capacity, Journal of Forensic Vocational Analysis, 16(1).
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Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP