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Estimating Future Wage Earning Capacity
An article appearing in the Journal of Forensic Vocational Analysis, Vol. 17, 1. Summer 2017, by Beverage & Durant, critiques the American Community Survey to determine if it is a valid instrument to estimate future earning capacity. The authors note that it has been found from longitudinal research on the American Community Survey (ACS), Current Population Survey (CPS), and the Survey of Income Program Participation (SIPP) that census-measured disability is largely transitory. They note that several economic researchers have posited that any work-life expectancy model, which assumes that census-disability measures are permanent conditions is empirically invalid. The authors further note that the findings in this current study empirically confirm the longstanding objections to the use of census data as a valid instrument to estimate future earning capacity. They further note that the ACS is highly subjective and can be completed by someone else other than the individual in question. The authors note that furthermore, the responses to the questions are based on the individual’s opinions and not on medical evidence, thus reliability and validity of the survey is extremely questionable.
A criticism of the use of the ACS by the authors is that the federal government did not create the ACS to be utilized in the individual (N = 1) context; rather, it was designed to be used for macroeconomic policy decisions. The authors note that there is not sufficient evidence to demonstrate that the data from the ACS provides accurate estimates of future earning capacity or employability for an individual. The authors note that the problem of utilizing a macroeconomic survey was that it was not designed for the individual context for making assumptions about the disability status, individual treatment goals, vocational rehabilitation outcomes, and future earning capacity. The authors note that the ACS alone is unable to take individual differences into account that research clearly indicates play a significant role, such as parental educational attainment, medical history, and individual physical or psychological limitations. The authors note that for these reasons, conclusions about an individual’s future earning capacity losses due to disability cannot be solely based upon the census data or upon the ACS.
The authors conclude that the measurement of the impact of disability on an individual’s future earning capacity is a complex matter. They further conclude that the available peer-viewed research and the Bureau of Census are quite clear that the American Community Survey was not designed for, and is not a valid instrument for measuring employment and future earnings for disabled individuals. They further note that only when the specific conditions of an individual are evaluated at the micro level, (i.e. education attainment, familial history, intelligence and personality, testing data, medical and psychological evidence) can the degree of disability and other confounding variables be properly accounted for in a vocational evaluation. They note that until an evaluation is completed, utilizing government sources of disability reporting will not be reliable and valid as the foundation for measuring the future earning capacity. Therefore, work-life expectancy for specific individuals cannot be determined for the same reasons.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or life care plan experts at Stokes & Associates please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Determining Wage Earning Capacity with Limited or No Work History
Determining loss of earning capacity for an individual with limited or no work history often involves considering various scenarios and determining what is more probable and reasonable given the particular context. More often than not, these cases involve younger individuals who have not developed a strong work history.
As an example of how our vocational experts handle situations like this, consider the case of John Jones, who at 18-years old required a below-the-knee amputation. Mr. Jones was fitted for a custom prosthetic and is permanently restricted to sedentary to light activities, with a maximum lifting ability of 35 pounds.
Since Mr. Jones was injured before he had an opportunity to establish a career path, his vocational profile is developed based upon his physical restrictions, sedentary to light activities, and the results of his vocational testing, which indicated average achievement in reading and below average achievement in math.
Without historically documented earnings to arrive at his pre-injury earning capacity scenarios are considered based on his age, family history, educational level, academic functioning, functional limitations, and his interests and goals for the future.
Strategy 1: Socio-Economic Status - Based on the educational levels and professional accomplishments of Mr. Jones’s family members. In this scenario, it is also important to consider the likelihood of advancement in an individual’s career, particularly given Mr. Jones’s young age.
Strategy 2: Potential for Intermediate Education - Based on Mr. Jones’s short-term educational and vocational goals.
Strategy 3: Potential for Advanced Education - Based on Mr. Jones’s long-term educational and vocational goals.
Strategy 4: Direct Job Access - Based on Mr. Jones’s demographic characteristics and geographic area.
Mr. Jones’s post-injury earning capacity is dependent on a) his ability to complete his Associate’s degree and those corresponding earnings; b) if not able to complete his degree, he will compete for employment with other individuals with a high school diploma and no work experience and such earnings.
Finally, we determine the loss of earning capacity Mr. Jones has experienced as a result of the injuries he sustained. In Mr. Jones’s case, the loss of earning capacity is dependent on educational attainment. After we complete the vocational analysis, the earnings data can be supplied to an economist who calculates the expected loss of earnings capacity over the individual’s work life expectancy.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
How do Vocational Experts Work with Economic Analysts?
Forensic vocational assessments often require collaboration between vocational experts, forensic economists or forensic accountants. As the economic expert’s opinions largely rely on the vocational opinions generated by the vocational expert, it is crucial that both professionals recognize the interdependence of their work products in litigated cases. The following are examples of economic and vocational experts interface:
The vocational expert provides:
Opinions regarding suitable post-injury jobs based on the medical, demographic, and test data that shape the worker’s vocational profile;
Pre and Post injury earnings associated with suitable occupations as a basis for future earning capacity of the worker;
A detailed estimate of a person’s future medical needs through life expectancy when presenting a life care plan or medical cost analysis.
The economist provides:
A base estimate of pre and post wage-earning capacity;
Inflation of the real value of money over time and appropriate discount to present value;
Valuation of economic loss related to earning capacity;
Inflation indices for medical care, treatment, supplies and services for life care planning;
Valuation of the cost of medical care over lifetime;
Life Expectancy (based on published data);
Value of fringe benefits, per diem, expenses, and travel.
Economists and vocational experts work in tandem to develop an estimate of economic loss based on generally accepted foundational methods.
To ensure an efficient and accurate analysis of economic damages and values of future medical care, always discuss your expectations with both your economic and vocational experts. Additionally, it is often advisable to encourage direct communication between experts to ensure that all relevant referral questions are answered as completely as possible.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Defining Work History Through Deposition Questions
When conducting a vocational rehabilitation assessment of an injured worker, it is important to first construct a pre-injury vocational profile. The pre-injury profile includes the client’s education, work history, vocational interests, and likely professional trajectory. In instances where an interview with the client is not possible, we often rely on information collected during depositions to construct both the pre-injury and post-injury vocational profiles to determine residual earning capacity. Below are some basic helpful questions to ask the plaintiff during a deposition:
What was your job title and who employed you? This is important for us to know in cross-referencing Department of Labor classifications of jobs to conduct wage research. Obtaining the full LEGAL name of the employer is also helpful if we need to request personnel or employment records.
What were your job duties? Just because we have a job title, does not mean we necessarily know what the daily job duties were. Additionally, the same job can be known by a variety of job titles. It is important to ask about key issues like: “How much did you have to lift/push/pull daily? Was help available when you had to lift heavy objects? What tools did you use? Did you operate machinery? To whom did you report? Did you need to use a computer? Did you use specialized software?”
What were your dates of employment? It is important to know how long an individual generally stayed at jobs to gauge likely performance, interest and plans to continue working in a desired field. Red flags arise if there are gaps in employment, or if some individual jumps from job to job.
How were you compensated? Earnings history is used to demonstrate likely earnings trends and helps determine pre-injury earning capacity. For example, if the individual earned less than the state statistical average for their job, they may have been underemployed. If they demonstrated earnings in line with statistical averages, then a reasonable assumption can be made that they could follow the documented earnings trajectories demonstrated by higher percentile wages. For business owners, it is important to ask about expenses they ran through their business, and the costs they could expect to incur should they be forced to hire someone to replace the services they can no longer perform.
What was your reason for leaving a job? This helps us understand how the individual makes decisions about employment and helps us to know about potential barriers to employment. For example, leaving a job because of continued conflict with a supervisor is very different from leaving a job to accept an offer of higher pay from a competitor.
We offer complimentary consultations concerning "hypothetical matters."
To learn more about important issues associated with determining pre and post-injury earning capacity or to strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
To Compel or Not to Compel: When it Comes to Life Care Plans, that is the Question
Under the Louisiana Code of Civil Procedure, Art. 1464, Order for an additional medical opinion for physical or mental examination of persons states:
A. When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to an additional medical opinion regarding physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an additional medical opinion regarding an examination by a vocational rehabilitation expert or a licensed clinical psychologist who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
B. Regardless of the number of defendants, a plaintiff shall not be ordered to submit to multiple examinations by multiple physicians within the same field of specialty for the same injury except for good cause shown.
C. A minor subject to examination under the provisions of this Article shall have the right to have a parent, tutor, or legal guardian present during the examination. (additional language in the Code has been eliminated due to not being relevant to this article)
It is well established that the Vocational Rehabilitation evaluation is subject to this article, which outlines specific guidance for compelling a vocational rehabilitation examination. The article ignores the issue of compelling a Life Care Plan examination. This exact circumstance arises when the defense is seeking a Life Care Plan examination to refute the plaintiff’s Life Care Plan and this request is denied by plaintiff’s counsel. Based on the language and spirit of the law, it should logically follow for the defense to have an opportunity to examine the plaintiff by an expert of their choosing. The law clearly outlined Vocational Rehabilitation experts and clinical psychologists, yet ignores a fairly new area of specialization, the Life Care Planner. Although the law does not specifically state that one can compel a Life Care Plan examination, it does address the need when it states: “When the mental or physical condition of a party, or of a person…, is in controversy, the court in which the action is pending may order the party to submit to an additional medical opinion regarding physical or mental examination”.
When this article was last amended, Life Care Planning was not so prevalent. Since Life Care Plans have gained wide acceptance in both state and federal jurisdictions, it would seem logical that the courts would consider compelling of Life Care Plan examinations when appropriate. When the condition of a party, including future medical care and the costs associated with such care, is in question, a Life Care Plan evaluation and report can provide the trier(s) of fact with significant guidance.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or emaildbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Life Care Planning and Burn Injuries
When evaluating the future treatment needs of an individual who has experienced a burn injury, there are several factors to consider. The treatment course for burn injuries will depend on the mechanism of burn, the depth of the burn, and the amount of the body surface area involved.
Early intervention with appropriate treatment of the burn injury is necessary to avoid complications. Complications could lead to increased medical costs due to the prolonged need for treatment. Complications can include infection, contractures, and hypertrophic banding. After maturation of the scar, even with appropriate initial treatment, additional surgical procedures and rehabilitation may be necessary. Psychological evaluation and treatment may also be needed.
Burn injuries can be caused by exposure to heat, cold, chemicals, electricity, friction or radiation. Depending on the mechanism of burn, there could also be internal injuries such as pulmonary damage due to injury caused by inhalation or destruction of deeper tissues requiring amputation of affected limbs. The tissue most often affected by burn injuries is the skin. Damage to the skin could impact the ability of the body to maintain fluids, regulate body temperature and prevent infection.
Burn injuries are evaluated by the degree or severity of the burn.
First degree (superficial burns) the outer layer of skin is damaged causing inflammation or redness.
Second degree (partial thickness burns) disturbs the first two layers of skin.
Third degree (full thickness burns) extends to the deepest layer of skin.
Fourth degree (deep full thickness burns) extend through the skin to underlying tissues, muscles, ligaments, and bones.
The total burn surface or total body surface area is another significant factor to evaluate. For instance, regarding the initial treatments of a burn injury, skin grafts may need to be performed in stages if there is not enough healthy tissue to perform the graft in one procedure. The total body surface of a burn is classified as minor, moderate or major, depending on the percentage of total body surface area involved.
If a significant amount of the total body surface is affected and if the burn has damaged the sweat glands (occurs at the partial thickness burn level), the individual will have to avoid exposure to hot or humid conditions. This could impact their ability to work in their usual occupation or partake in outdoor activities, especially in hot or humid weather conditions. Depending on the nature of the burn and the physical implications, alternate work situations may need to be explored to mitigate damages related to loss of earning capacity.
A knowledgeable and experienced life care planner and vocational expert engaged to evaluate your case needs will lead to appropriately assessing future care needs and vocational prognosis.
*Weed, R.O. (2009). Forensic issues for life care planners. In Weed, R.O., & Berens, D. E. (3rd Ed.), Life Care Planning and Case Management Handbook (pp. 741-760). Boca Raton, FL: CRC Press.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Are We Saying The Same Thing? How to Define Physical Demand
When developing jobs for claimants, several steps must be taken and several questions must be asked. One of the most important questions is what are the physical requirements of the job and do those requirements line up with the claimants' restrictions. When contacting employers, the vocational expert must query about the specifics of the job to verify it is within the claimants' vocational and physical profile. Asking about how frequently something is done or how heavy certain objects are is commonplace when speaking to employers. But are we referencing the same thing? Is the employer’s definition of heavy the same as the vocational expert’s?
In 1991, The Department of Labor set out to objectively define various aspects of jobs, in a way that could be understood by anyone working within the field of occupational analysis (in The Revised Handbook for Analyzing Jobs.) The handbook outlines how to analyze the physical aspects of jobs and the correct wording to use. It defines physical demand constructs in a quantifiable way. It is the vocational expert’s job to verify and define these terms to employers, who most likely have no understanding of the standardized language used by the vocational experts, physicians, adjusters, physical therapists who conduct FCEs, and attorneys.
The following are the Department of Labor’s definitions and time equivalents.
How can a vocational expert accomplish this while still maintaining good communication with the employer? When asking questions, the vocational expert must be not only knowledgeable of the charts above, but must also be able to explain these standards in ways that a layperson can quickly understand. Instead of using the set forth fractions that delineate timeframe, the expert may use the actual corresponding timeframes. Chances are an employer would be better able to say how many hours a particular activity takes versus what fraction of the day it takes. We, at Stokes and Associates, Inc., have developed standardized methods to effectively ask these questions to get a realistic picture of the jobs while still maintaining our relationships with employers.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
What is a Reasonable Job Search?
When we are engaged to assist in cases where our role is that of “rehabilitation counselor,” our task is to offer and provide job placement assistance to individuals who have been out of the workforce because of injury or illness. In those cases, the injured worker is required to “actively” participate and engage in the job placement process, and conduct a reasonable job search.
The injured worker is expected to make efforts to obtain work in similar or other jobs. Government agencies define active job search as "one that could have resulted in a job offer without further action on the part of the job seeker.”
An Article by Stewart and Turner (2014) presented the Job Search Evaluation Scale to systematically evaluate six major components of a successful job search including: time spent on the job search, face to face contacts, seeking agency assistance, informational interviewing, and documented follow-up efforts.
There has been much debate regarding what constitutes a "reasonable” or “acceptable” job search by the injured party. Although there is no definition of what is “reasonable,” the following are suggestions on what an effective job search should encompass for the injured worker:
Work closely with the rehabilitation counselor to develop job goals and receive job seeking assistance as needed
Network (some research suggests that more than half of job seekers found their current jobs through personal referrals)
Apply for jobs online, BUT make personal face to face contacts with people/prospective employers
Apply and utilize assistance from local Job Service offices/agencies
Develop updated customized resume(s) and cover letters
Prepare in advance for job interviews
Apply for all job leads given by the rehabilitation counselor and agencies, including attending job fairs, contacting staffing firms, and participating in informational interviews.
Keep records and documentation of hours spent, contacts made, and follow-up details on all job leads
Spend 20-30 hours per week engaged in the above activities including follow-up with applications submitted, personal contacts made via networking, prospective employers contacted, and all job interviews attended.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
*Stewart, D., & Turner, D. (2014). What is a Reasonable Job Search? Developing a Theoretical Framework. The Rehabilitation Professional, 22(4). PP 223-230.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
What’s the going rate of pay? Using government statistics to evaluate earning capacity.
When performing a vocational analysis of an individual’s potential lost earnings, it’s important to rely on reliable and trustworthy data to compare the pre-injury to the post-injury earning capacity. Whereas tax information or pay stubs are useful in describing an individual’s actual or demonstrated earnings, government statistical wages offer a broader picture of expected earnings collected over a wider sample size. The Bureau of Labor Statistics (BLS) and the U.S. Department of Labor collect troves of useful information regarding specific occupations and the “going rate” of pay.
One of the most useful datasets is the Occupational Employment Statistics (OES) survey. The OES is a semi-annual survey of cross-industry occupational employment and wage estimates for the nation; over 650 areas, including states and the District of Columbia, metropolitan statistical areas (MSAs). The OES estimates are constructed from a sample of about 1.2 million establishments who are surveyed by mail, through the Internet, and via personal visit. Wages for the OES survey are straight-time, gross pay, exclusive of premium pay and are reported for MSAs, by state, or at the national level. Statistical algorithms are applied to impute the 10th, 25th, 50th, 75th, and 90th percentiles. These levels are often used to determine what the typical worker would earn given increasing levels of experience.
The OES occupations are listed according to Standard Occupational Classification (SOC) system. The (SOC) is used by Federal agencies to classify workers into occupational categories for the purpose of collecting, calculating, or disseminating data. All workers are sorted into one of 840 specific occupations according to their occupational definition. In order to classify jobs, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together.
Given the injured worker’s job title (and SOC code) and geographic location, we can estimate what the wage ranges for that occupation are. With that information, we can compare the claimant’s actual earnings with average earnings reported for their MSA and determine if they were earning above, below, or roughly in line with industry standards. Wage information for alternate jobs given the claimant’s ongoing physical restrictions can be compared with pre-injury wage information to arrive at the estimated lost earning capacity.
Not all jobs or occupations fit neatly into the pre-determined classifications used by the government to collect data. In these instances, we consult professional trade organizations or other state and local groups who collect more granular information on these occupations. To learn more about how the vocational experts at Stokes & Associates, Inc. use published data and other sources to arrive at our opinions, contact us for a complimentary consultation.
To schedule a complimentary consultation, please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Assessing Earning Capacity in Business Owners, Self-Employed Workers and Contractors
Assessing the earning capacity of business owners, self-employed workers and contractors can be particularly complex as some or all of income can be derived from the work or labor of others or profits from a business. The earnings for self-employed or contract workers are based on earnings of the business they operate, which includes gross revenue, expenses, and profit. When assessing potential loss of earning capacity, it is very helpful when earnings records are provided. However, accurate earnings records in the form of tax returns are often unavailable or incomplete, and little documented or verified information is known about the earnings of the self-employed or contract worker. Examples of the self-employed workers we evaluate for earning capacity include business owners, professionals, skilled workers, such as mechanics, carpenters, contractors, and landscapers.
Let’s take an example of a contractor who renovates houses. This contractor operates the business as an owner, and sub-contracts other skilled workers to perform the jobs of a carpenter, roofer, plumber, electrician, painter, etc. This contractor’s earning capacity is based on the profits of the company. It may be that after an accident or injury the contractor can maintain the historical level of operations, or there may be a reduction in productivity due to physical limitations, time lost to medical treatment, or other limitations. Intuitively, a loss of earning capacity can be determined by assessing the difference of pre-injury earnings compared to post-injury earnings, however, such a calculation is multi-faceted. In addition to simple profit and loss analysis, external factors may influence potential earnings such as the overall health of the economy or the strength of the real estate market.
A common scenario involves a contractor who performs some degree of the labor him or herself. For example, the contractor may do all or some portion of the carpentry, roofing, plumbing, electrical work, painting, etc. If the index injury has left the contractor with limitations that prevent the performance of the more physical pre-injury job tasks, how would we best determine the contractor’s loss of earning capacity? There are many factors to consider, and no one method can definitively calculate the loss of earning capacity. Similar analyses require a flexible approach that takes into consideration all available information.
One typical method to assess the post-injury earning capacity includes assessing the wage earning capacity of the same occupation as if the owner/contractor were a salaried worker. This approach is most appropriate when the owner/contractor can work as an employee. If the contractor had a pre-injury earning capacity of $5,000 per month, and can now be a trim painter, and the wage range for a trim painter is $1,500 to $2,000 per month, with an average wage of $1,800 per month, then the loss of earning capacity can be assessed as ranging from $3,000 – $3,500 per month, with an average loss of $3,200 per month.
Another method of calculating a loss is to account for the cost of modifying the worker’s job, such as hiring a helper/laborer to perform the tasks the contractor can no longer provide. This method is similar to compensation for lost ability to provide services. The services of the laborer are considered an additional expense to the owner/contractor, thus equivalent to their loss of earning capacity. If the contractor had a pre-injury earning capacity of $5,000 and the cost of hiring the laborer/helper ranges from $1,500 to $2,000 per month, with an average of $1,800 per month, then the loss of earning capacity can be calculated as the additional cost of the helper/laborer.
In some instances, such as commission or production compensation, a method to assess the loss of earnings can be based on time. For example, we can assess what the worker generally earns minus those earnings he would not be able to achieve because he cannot be “on the job” due to the limitations from the injury. If a contractor averaged $5,000 per month working 200 hours per month and then becomes physically limited to half-time work, the contractor would experience a loss of earning capacity of $2,500 per month.
Depending on the case, Stokes & Associates, Inc can employ a number of credible methods to determine the loss of earning capacity for business owners, self-employed and contract workers. Although there are limitations to the validity and reliability of such assessments, thoughtful analysis requires gathering as much information as possible and making judgments based on generally accepted and reasonable methods.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokesassociates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Estimating Worklife Expectancy
Worklife expectancy describes the probability an individual will be participating in the competitive labor market and the probability he or she will be employed if participating in the labor market. The sum of these joint probabilities represents the statistically projected number of years of employment, including expected gaps in employment, over the individual’s remaining life expectancy. Worklife expectancy, then, provides valuable information regarding wage loss, if any, as a result of prematurely exiting the competitive labor market as a result of injuries sustained.
While the concept of worklife expectancy is not new to the field of forensic vocational rehabilitation, there has recently been increased attention to the topic in both academic publications and case law. For example, a presentation recently given by D.S. Gibson discussed research regarding worklife expectancy whereby the extent to which a disability* diminished worklife expectancy was mitigated by increased educational attainment, such that severe disabilities consistently reduce worklife expectancy by 70% to 80% for high school graduates but only 50% for those with baccalaureate or higher degrees. However, and not surprisingly, total dollar loss as a result of diminished worklife expectancy increases with each level of education. As such, estimating worklife expectancy and wage loss as a result of decreased worklife expectancy is not an exact science, and data relating to the determination of diminished worklife expectancy should be used as a framework for understanding the issue, not for pigeonholing a particular individual.
At Stokes & Associates, Inc., we are committed to remaining up-to-date on the latest research relating to the issues that arise in our work, but our experts approach each case by considering the specific functional disability, and the effect of that disability on the individual given his or her age, gender, level of education, prior work history, and vocational profile. Based on this information, we are able to formulate an opinion on whether it is more probable than not that the individual will experience a loss of worklife expectancy, though we typically defer to a forensic economist to determine the number of years of such a loss, if any.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokesassociates.com.
*Of note, in this research, “disability” was measured by relatively general questions relating to difficulty experienced as a result of a physical (mobility, hearing, or visual) or mental condition.
Loss of Wages and Loss of Earning Capacity: What’s The Difference?
As part of a vocational analysis, it is important to distinguish between wage loss and loss of earning capacity, as we are often asked to develop opinions on these different, but related issues.
Wage loss refers to the total sum of wages an individual could have earned during a certain period, but for an injury, and is often quantifiable by referencing tax records or earning statements. For example, if an individual requires three months of medical treatment before he or she can return to work, the wage loss would equal the amount that individual would have earned over those three months. As another example, if an injured individual has returned to work, but then has to miss six months after a back surgery related to the initial injury, the wage loss would equal the amount that individual would have earned over those six months.
Loss of earning capacity, on the other hand, refers to the loss of the ability to earn wages in the future as a result of an injury. In the first example given above, assuming the individual is able to return to his or her prior job with no restrictions after three months of treatment, there would be no loss of earning capacity as a result of his or her injuries. In the second example, assuming the individual is not able to return to his or her prior job as a result of the postsurgical restrictions on his or her activity, the loss of earning capacity would equal the difference in his or her documented salary, or potential wages as estimated by government statistics, prior to the injury and his or her potential earnings after the injury. Determining loss of earning capacity involves careful study of pre- and post-injury abilities, as it is not always the case that a change in occupation necessitated by an injury leads to a loss of earning capacity. In some instances, an individual may have the opportunity to earn the same or more than he or she was prior to the injury.
At Stokes & Associates, Inc. we evaluate the injured individual and carefully review records to determine pre-injury earning capacity. We then investigate various potential post-injury job opportunities to accurately describe whether the individual is likely to experience a loss of earning capacity, and, if so, the extent of that loss. To do this, we perform an assessment of residual employability, use proprietary databases to research alternative occupations based on the individual’s transferable skills and to gather wage statistics, and, when applicable, our research department contacts employers to inquire about available job opportunities, expected salary, physical demand levels, and training required. When appropriate, we investigate vocational retraining or educational opportunities to mitigate long-term losses in earning capacity, particularly with young people who are not yet tethered to a career trajectory.
We offer complimentary consultations concerning "hypothetical matters." To strategize with one of our experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokesassociates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
The Who's Who of Life Care Plan Recommendations
Creating a cohesive life care plan for use at trial is like choreographing a ballet. When possible, a life care planner should consult and collaborate with members of the interdisciplinary life care planning team, with each team member playing their crucial role. Below is a list of some of the “players” and a brief description of their roles.
Physiatrist: A physiatrist is a medical doctor who is specially trained in physical rehabilitation medicine. They often lead treatment teams in inpatient and outpatient settings and are responsible for generating the overall plan for increased functioning and medical improvement for the injured party. Physiatrists act as the central consultant of the rehab team and can be essential in learning future medical recommendations for interdisciplinary assessments, potential medical complications, the need for additional diagnostics, and the necessity of adaptive equipment.
Physical Therapist: The physical therapist (PT) typically designs a functional rehabilitation program under the supervision of the physiatrist or other treating physician. The PT measures functional limitations and outlines clear, measurable treatment goals that drive physical therapy modalities. The PT can often comment on the need for regular PT evaluations, courses of care, and the need for patient and family training. They can also weigh in on the benefit of a home exercise regimen or health facility such as a gym membership, to maintain functionality gained through physical therapy long-term at a more reasonable cost.
Occupational Therapist: In general, the occupational therapist (OT) addresses activities of daily living such as self-care, bathing, cooking, and dressing. OTs can also perform home visits to assess home safety and home functionality. These opinions are crucial when trying to determine the necessity of home modifications for individuals with acquired mobility problems or other special needs.
Psychologist/Psychiatrist: In general, the psychologist assists with assessment of behavioral and emotional limitations and provides recommendations regarding cognitive rehabilitation, psychotherapy, and the need for emotional and/or social support. The psychiatrist assists with medication management and makes recommendations regarding long-term psychiatric treatment needs.
Prosthetist: In amputation cases, no individual is more important for addressing future prosthetic costs than the prosthetist. Each amputee is different, but all require prostheses that change over time as the amputee’s body changes. Prosthetists are essential for identifying a patient’s individual needs and is usually in the best position to comment on how those needs will change in the future.
Once all the pertinent information is gathered, whether through consultation or record review when consultation is not possible, the life care planner assembles and aggregates the future medical recommendations into a comprehensive life care plan. Although some life care planners prefer to rely on published costs, we at Stokes & Associates, Inc. do customized cost research relevant to the claimant’s geographical location. This extra step ensures that market fluctuations are accurately reflected.
There are other allied health professionals we tend to rely on, for a complimentary consultation with one of our experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
What Do We Really Need to Develop a Vocational Opinion?
Our customers often ask what factors are related to pre- and post-wage earning capacity and how we use that information to develop our vocational opinions. Some of the most important information can be obtained during discovery, interrogatories, depositions, and engagement of other experts. To gather this data, we advise our customers to: 1) identify who holds the pertinent information 2) get access to the information holder 3) ask the right questions; 4) get detailed and useful answers. To facilitate the efficient flow of information, here are some key issues that are central to our vocational assessment process:
Current medical status of the injured individual. Many people return to work before maximum medical improvement is achieved. It is helpful, however, to have a firm medical prognosis, so that we can better predict the final outcome and more accurately project vocational capacity into the future.
Ability to work. Regardless of medical status, it is important to know if an individual is currently able to work, and, if so, when the individual returned to work post-injury. An accurate timeline regarding the claimant’s work status assists us in calculating earnings associated with any “lost time” that the injured individual was not able to earn wages in the labor market.
Physical and Mental Restrictions. Restrictions are often the most important piece of information in determining whether an injured individual can return to their previous job, and, if not, what jobs they can do. It is essential to know if permanent physical, cognitive, or emotional restrictions exist so we can apply those restrictions to the outcome assessment.
Medication effects. The effects of medication can strongly impact potential restrictions that can impact workplace safety, making the need for detailed medication list crucial. It is important to know if adjustments could be made to the medication regimen to mitigate any side effects that negatively impact employability.
The Physician’s Opinion Report form and Physical Capacities Work Restriction form are tools we have developed that can be used as guides for gathering the specific information we require. These two forms are available upon request free of charge.
For a complimentary consultation with one of our experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Life Care Plans and Physician Conferences
As is stated in each of our reports containing a medical cost analysis, life care plans are derived from several sources of information, including an initial interview, a review of medical records, physician, and allied health professional recommendations, and research regarding the standard of care for each specific injury. We utilize a structured interview to gather preliminary information regarding an individual’s medical, social, and psychological history and current functioning. This information provides the framework for building a life care plan, which is supplemented with research, and, when possible, we rely on corroborating and supplementary information learned via communication with treating or consulting physicians and allied health professionals.
While some of these important recommendations can be obtained during a review of medical records, more often than not records do not outline the care likely to be necessary throughout an individual’s life expectancy. Further, even when recommendations are found in medical records, the frequency and duration of those recommendations are rarely offered. To address this, when possible, we use the medical record review to identify information pertaining to an individual’s treatment needs and to generate questions based on each specialist’s area of expertise. With targeted questions in hand, we then contact the treating or consulting physicians or allied health professionals and offer to send them a questionnaire or to schedule a telephone conference. Physicians and allied health professionals tend to appreciate the option regarding how to communicate their recommendations, as well as our targeted and well-developed questions.
As an example, when generating questions for an orthopedic physician who has been providing pain management interventions for an individual, we would ask about the frequency and duration of future interventions that are required, as well as the threshold, if any, for transitioning from interventional pain management to surgical options. In addition, we would inquire about the medications and therapies necessary for generally treating the injury or illness, as well as medications and therapies associated with acute post-procedural or postsurgical care. We also inquire as to the probability of those recommendations - recommendations are only included in the life care plan if they are described as more likely than not, indicating a greater than 50% chance of being required.
While we are not always able to communicate with treatment providers, whether due to time constraints, lack of response from the provider, or difficulty obtaining approval to contact the providers, we always make an effort to do so. Communication with physicians and relevant allied health professionals gives us the opportunity to ask pointed questions and get detailed answers, often above and beyond what is contained in a chart note or progress report. The richness of information we are able to gather during that communication enables us to generate a valid and reliable life care plan.
Through a complimentary consultation, we are happy to share any information about our experience with utilizing physician conferences to benefit a specific case.
To strategize with one of our experts at Stokes & Associates, please call David Barrett at
504- 454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokesassociates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Using Wage and Employment Statistics in a Vocational Assessment
As vocational experts at Stokes & Associates, we rely on various resources to help formulate our opinions regarding an individual’s employability and earning capacity or loss of earning capacity.
Our labor market and wage research consists of two parts. One is to identify and describe suitable vocational alternatives for an individual (“confirmatory research”). We accomplish this by conducting a Labor Market Survey, which is comprised of searching for specific jobs with potential employers in a specific geographic area to determine job requirements, availability, and suitability for our evaluees. The other part of our analysis is to investigate the employment outlook and earnings of the respective occupations (“exploratory research”). We utilize the Occupational Employment Statistics (OES), which produces the Occupational Employment and Wage Survey. The OES is a cooperative program between the Bureau of Labor Statistics (BLS) and individual State Employment Security Agencies. Each state produces wage and salary information by region or metropolitan statistical area, which allows us to conduct research nationally.
As an example, if we were looking for occupations in Louisiana, the published data would provide us with:
The “mean” wage and three percentile measures ranging from the 25th (low), 50th (median), and 75th (high) based on straight time, gross pay;
Wage estimates for 799 national and 716 Louisiana statewide occupations in over 400 industry classifications;
Earnings data for 8 Regional Labor Market Areas in Louisiana;
Occupational groupings that are industry specific.
What is NOT included in this published data are specific job titles within the occupational group, which are classified by Standard Occupational Classification (SOC) code. Any given SOC code may have several individual job titles that fall within that code. For example, in determining earnings for light delivery drivers, “couriers and messengers” is the occupational group, based on SOC code 43-5021. The following information can be obtained for “courier and messengers” for New Orleans Regional Labor Market Area for 2015:
Number Employed
310
Entry Level
$19,717
Median
$26,979
Experienced
$32,612
With this, we ascertain annual earnings ranging from the 25th percentile ($19,717) to the 75th percentile ($32,612), in addition to the number employed (310). This statistical data is then confirmed by a Labor Market Survey, which also expands our understanding of potential employment opportunities by providing information regarding actual job availabilities, accommodations available, and the corresponding earnings. Many times, the information obtained from a Labor Market Survey corresponds with the statistical data reviewed; however, if there are discrepancies, we can then explain how and why there are differences.
We offer complimentary consultations concerning "hypothetical matters." To strategize with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Case Records Review
Vocational and Life Care Plan Evaluations require detailed information about an individual’s past and current social, professional, and medical functioning; however, self-report is subject to both conscious and unconscious biases that may skew the final opinions. For this reason, our experts at Stokes & Associates, Inc. utilize other sources of information to corroborate the information learned in an evaluation, which ensures our opinions and reports are based on the most accurate and complete information available. One important collateral source of information is a thorough record review.
When generating a life care plan, we rely on medical, psychiatric, and psychological records to provide detailed information relating to an individual’s treatment, medications, prognosis, and medically-derived restrictions or limitations. This information allows us to create a life care plan that is precisely tailored to the specific individual, incorporating explicit recommendations provided by their treating physicians and utilizing knowledge of their exact needs. The recommendations included in our life care plans are directly linked to the medical, rehabilitation, and psychological records, which gives our reports the strong foundation necessary to be presented and defended in court.
With vocational analyses, we also rely on educational records and documentation of earnings to supplement our understanding of their pre- and post-injury earning capacity and employability. For example, most individuals are generally aware of how much money they earn, but few can provide detailed salary and tax information off-hand. When we are able to access and analyze an individual’s tax documents we can survey their earning history and more reliably calculate their post-injury lost earning capacity. Further, records pertaining to an individual’s work ethic, work stability, and return to work attempts can aid us in identifying viable future employment opportunities for that individual.
We take pride in being thorough but efficient, so our record review process is scrupulous but well organized. To consult with one of our experts at Stokes & Associates, Inc. about what records you should send to us and how we will utilize them, please call David Barrett at 504- 454-5009, visit our website, www.stokes-associates.com, or email dbarrett@stokesassociates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
FCE and Vocational Analysis
Determining an individual’s vocational capacity following an injury requires a multi-disciplined approach. At Stokes & Associates, we rely on many sources of information in making this determination, including an in-person evaluation, doctor recommendations, and thorough record review. When the records include a Functional Capacity Evaluation (FCE), we are provided with a detailed and reliable description of the individual’s work-related physical capabilities; this information contributes to our ability to successfully match the individual with work he/she can effectively perform in environments he/she can tolerate.
FCEs are comprehensive examinations typically performed by occupational or physical therapists, as these professionals are uniquely qualified to understand the dynamic interactions between the person, the environment, and the occupation. The specific components of the evaluation depends on the purpose of the assessment (i.e., return to work versus determining appropriate treatment course), though it almost always involves a client interview followed by several reliable and valid functional tests, including:
Material-handling and strength (i.e., lifting, carrying, pushing, pulling);
Positional tolerance and flexibility (i.e., sitting, standing, walking, balancing, kneeling, stooping, reaching, crouching, crawling);
Coordination and balance (i.e., right versus left side ability).
An FCE report often describes the individual’s subjectively reported pain levels and objectively witnessed pain behaviors throughout the functional tests. Finally, an FCE report includes information about the individual’s effort and motivation, which is indicative of willingness to return to work and to perform at his/her optimal ability.
As job placement and vocational analysis specialists, we value ecologically valid data regarding an individual’s limitations and abilities. Often times, an FCE is the best predictor of future success in returning to and maintaining work following an injury, as it facilitates matching individuals with job demands suited to his/her range of functioning.
To consult with one of our experts at Stokes & Associates, Inc. about whether you should pursue a FCE for a specific case and/or to get recommendations for evaluators in your area, please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Vocational, Life Care Plan Experts and Preferred Providers
At Stokes & Associates, we recognize the importance of selecting the right experts and consultants to appropriately assess and define the damages portion of your case. We believe the expert's role is to be a knowledgeable educator who adds value by informing and assisting the trier(s) of fact regarding the issues at hand.
As Vocational Rehabilitation and Life Care Plan experts and consultants, we often analyze the work products of other experts and providers, and we are very familiar and comfortable with the interdisciplinary nature of physical rehabilitation teams. We welcome the opportunity to consult and collaborate with physicians and other allied health professionals who have an impact on the outcome of your case.
Encouraging collaboration and communication with other key treatment providers or evaluators allow for more accurate assessment of the rehabilitation potential, employability, earning capacity, and future medical care needs of the injured party. In networking and collaborating with other healthcare and forensic professionals, we have generated a database of key specialists and providers who we frequently recommend to referral sources. By consulting us early in the process, we can assist you to find and secure the team you need to achieve the outcome you seek.
Through a complimentary consultation, we are happy to share any information about our experiences with other providers who may be a positive impact on your case.
To strategize with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Case Records – Do We Have What It Takes?
We realize it is not always possible to provide a complete set of records when referring a case for a vocational assessment or life care plan. Records tell a story, and in order for us to provide a comprehensive assessment, having a complete set of documents in our possession prior to rendering our opinions is crucial. In general, the more information we have early in the process, the better able we are to see the whole story.
After records arrive, we can get the file opened, begin our review, and determine if any additional information is needed such as a medical consultation, second medical opinion, FCE, etc. This is particularly important when the assignment is a RUSH (less than 30 days for vocational and less than 45 days for life care plans).
In determining how soon we need to get an evaluation scheduled and records reviewed, we consider:
The discovery or cutoff for expert reports; not only our own but those that rely on our report such as an economist. In order for the economist to complete their work, we usually have to get our report in one week earlier than their deadline.
Whether a mediation or settlement conference is scheduled and when. We need to prepare our information in order to assist you with a successful mediation or settlement conference.
There are times when we do not have the opportunity to conduct an interview or assessment of the evaluee, and in these cases, our opinions are based on a record review, research, and our knowledge of best practices. In these cases, it is paramount that all records are received in a timely fashion in order for us to effectively and efficiently complete a report.
For vocational referrals where employment outlook is assessed, it is extremely helpful to review records to determine if physical restrictions have been outlined. Likewise, when assessing earning potential, it is helpful to have received tax and earnings records. Additionally, having educational and/or school transcripts are beneficial if determining an evaluee’s potential career path and training potential. These types of records may take time to acquire, so requesting these documents from the proper source early on will help us do our job well.
When developing a life care plan or medical cost analysis, it is essential to have file records at the time of referral or shortly thereafter so we will be in a position to determine if additional medical information is warranted to assist with our opinions or if a consultative evaluation is needed.
When referring vocational assessments or life care plans, consider the following:
Do I have all the file material ready to send to the expert? (See our Document Checklist)
Do I need to obtain school records or transcripts?
Do I need to order earnings records such as tax returns and or Social Security earnings records?
Receiving file materials and essential documents early save us time, reduce inefficient billing, and ultimately help with a smoother workup of your case.
We offer complimentary consultations concerning "hypothetical matters." To strategize with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP