vocational rehabilitation experts in the litigation...
TRANSCRIPT
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Vocational Rehabilitation Experts
in the Litigation Context
Presented by Scott Haworth
March 22, 2011
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PART ONE
WHAT DO THEY DO?
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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
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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.”
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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
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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
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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
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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)
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Other Areas Tested
• Reading
• Spelling
• Arithmetic
• Grip Strength
• Identify One of Four Skill Levels
• Identify Physical Capability
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PART TWO
VOCATIONAL
REHABILITATION IN THE
COURTROOM
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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
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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?
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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.
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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)
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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
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• “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
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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)
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Attacking the Bases for Plaintiff’s Expert’s
Opinions (a/k/a “Garbage In/Garbage Out)
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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
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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
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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
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Psychiatric Overlay
• Post-Traumatic Stress Disorder
• Depression
• Egg Shell Skull Plaintiff (10-10-80)
• Post-Concussion Syndrome
– MRI
– CAT Scan
– PET Scan
– EEG
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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
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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
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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
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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!
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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
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PART THREE
INTERPLAY BETWEEN THE
VOCATIONAL
REHABILITATION EXPERT
& THE ECONOMIST
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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
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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
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QUESTIONS
COMMENTS
DISCUSSION