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Vocational Experts: How to effectively Challenge in Damage Cases

Article on how to qualify and challenge a vocational Expert

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Allan Billehus's curator insight, April 29, 2013 1:54 PM

                                — By Allan S. Billehus M.S., Ed.S., LPC, CRC

Vocational Rehabilitation Counselors specialize in the study of medical and psychological aspects of disability, assessing an individual’s disability to delineate functional limitations and possible vocational alternatives.  This unique and specialized knowledge places vocational rehabilitation counselors in a critical forensic role as an expert witness for the tire of fact.  The vocational expert (VE) assessment and testimony measures the scope and severity of a disability in functional and vocational limitations. This is vital in accidents that occurred and may be subject to legal claims for monetary damages.

 

The expert opinion given by a VE can be formulated to being the essential element in measuring economic damages in a legal claim.  Due to this economic loss experts rely on the conclusions and numbers provided to them by the VE, for them to calculate the total lost earnings as well as lost earnings based on work-life expectancy.

 

The VE testimony edifies the claim for damages and because of this it is vital that attorneys have a purchase to the vocational assessment process and VE training, so that they can understand the vocational recommendations and how they can challenge to vocational prognosis.

VE Qualifications

 

The expert's curriculum vitae (CV) will assist counsel to identify the expert's qualifications. Counsel will want to obtain information relating to the expert's education, licenses, certifications, training, teaching and writing experience, employment history, professional association membership. Most VE’s holds a master's degree in rehabilitation counseling, from a C.O.R.E accredited program. The training should include medical and psychological aspects of disability, work in psychological counseling, vocational testing, and working with individuals who have disabilities, job development and placement.

 

 The most respected professional certifications include:

 

Certified Rehabilitation Counselor (C.R.C.)

Certified Vocational Evaluator (C.V.E.)

Certified Case Manager (C.C.M.)

Certified Insurance Rehabilitation Specialist (C.I.R.S.)

 

Counsel may wish to consult with their retained VE on these matters.

Key points to challenge a VEAscertain if the VE has the qualifications to offer an opinionExplore the VE’s  vocational evaluation styleExamine information the VE reviewed regarding pre- and post-accident lifeDetermine and understand the opinions the VE will offer at trialResearch, identify and analyze the method and  foundation for each VE opinion

By retaining and consulting with your VE, attorneys will be better prepared to assess the opposing VE's report and opinions.

 

The Vocational Assessment

 

The purpose of a vocational assessment is to delineate the physical and mental capabilities of an individual.  The first step in an evaluation is reviewing records and possibly contacting medical and psychological providers/professionals as well as employers. Typical evaluations involve an oral interview and, if appropriate, testing.  During the interview the VE is gathering information about an individual’s work history, medical history, social and family background, educational history, military service, financial situation, and interests, as well as to determine if testing is required. The testing may include IQ, Achievement, Aptitudes, Personality, Interests, work samples and or tests of manual dexterity.  After assessing this information the VE forms a professional opinion regarding functional limitations and vocational disability.

 

Salient issues involve whether the individual is:

Ability to return to same job same employer and pre-injury income without accommodations.Ability to return to the same career, performing the same duties, and at the pre-injury salary — if accommodations or modifications are made to accommodate the individual’s disability.Capable of returning to the same career, but with different duties and lower salary than pre-injuryAbility to returning to a different career, without re-training, and a lower salary pre-injuryAbility to returning to a different career, with re-training, and a lower salary pre-injuryNot capable of returning to gainful employment ever again.

 

The VE can still assess and opine even if the injured individual was in school, a child, or hadn’t entered into the workforce at the time of the accident. The VE can determine pre-injury career goals/abilities, and ascertain if the individual would have been reasonably able to achieve those goals and what would the individual would have likely earned.

 

The attorney will want to investigate a VE’s experience and skill in administering vocational tests as well as give close attention to the VE’s methodology. Did the VE have access to the latest medical assessments and other documents? Was the VE’s evaluation comprehensive and thorough and did they VE deviate from peer reviewed and standard methodology? What tests were administered and why they were chosen, are those tests the best in assessing that ability in this particular individual? Was the VE able to identify transferable skills? Did the VE assess mitigation issues? Did the VE identify and outline vocational alternatives or just provide litigation support? Which tests were administered? Did the VE identify the individual's transferable skills? Counsel may also inquire whether the VE identified vocational alternatives or if they simply provided litigation support.

 

Salient vocational facts regarding disability and functional limitations include: age at the time of the injury; occupation and career level at the time of injury:  job title, duties, responsibilities and salary; work history; medical and/or psychological conditions prior to the injury; medical and/or psychological conditions at the time of the VE’s evaluation; and current medical conditions.  Some mitigation factors include educational history since the injury, job search, and labor market survey.

 

This information should be included in the VE’s report and from this counsel would be able to ascertain what facts and information the VE considered or failed to consider. By retaining your own VE, they can look inside the report at an increased depth and provide valuable services in this regard.

 

Medical Records Review & Assessment

 

The main component of a vocational assessment is the medical records. Many attorneys’ fail to realize the value of an independent medical examination (IME) and/or a functional capacity evaluation (FCE) to their case and this is another area where a VE can be of assistance in determining if it would be of a benefit. These two components can highlight malingering.

 

Employment, education, medical, and military records may elicit transferable skills not identified, or perhaps downplayed, by the opposing VE. This information will enable counsel to challenge the foundation and reliability of the vocational assessment.

 

Pre-Injury Educational Assessment

 

An individual’s scholastic performance and aptitude can prove to be valuable assets in a case where an individual will need to be re-trained, i.e., return to school to learn a new trade or skill.  These records are also useful in a case in which the individual was in school at the time of injury, and it is now being reported that they are unable complete the educational goal due to the injury.

 

Work History Assessment

 

Doing interviews with an injured individual’s employers, supervisors, and co-workers can provide vital information regarding and individuals work ethic, overtime behavior, job performance, salary, and advancement potential pre-injury. Also, earnings information and work history stability can be obtained from Social Security and employer records.  Did the VE do enough occupational research? Job placement agencies and sometimes “headhunters” can be a valuable source to provide objective information on general occupational requirements.

 

Loss of Earning Capacity

 

Once a VE has fully analyzes an individual’s pre-injury vocational abilities, they can render an opinion on an individual’s loss of earning capacity from the injury. Attorneys can challenge the VE opinion through the sources utilized to form the opinion.  By retaining you own VE, they may be able to uncover higher –paying occupations that the injured individual can do or be re-trained for than the ones identified by the opposing VE.

 

Work-Life Expectancy

 

This area of a VE’s opinion can vary drastically depending on the sources and data the VE uses in rendering a decision. Because of this, the VE’s opinion can be vulnerable to a challenge on their assumptions and calculations based their report of the injured individual’s ability to work in later years. Often, VE’s will report that an individual will work until they are 65 or 70 when the average retirement age is 61.5. Some VE’s or economist do not take into account idiosyncrasies of types of occupations and expected separation from employment.  Some VE’s and Economist  try to  quantify post-injury work-life expectancy from work-life expectancy tables that characterize disabilities into broad nebulous categories, e.g., mildly disabled, severely disabled, which has been successfully challenged many times.  Work-life expectancy is highly contingent on the worker traits performed in the job, e.g., physically demanding versus sedentary. It is also influenced by pre-existing medical and psychological conditions, plus must take into account work ethic and performance when information can be uncovered.  

 

VE as a valuable resources

 

VE can provide critical support to the damage portion of claims as well as appropriate vocational options for injured individuals. It behooves attorneys to understand the education and expertise of a VE and the vocational assessment process as well as the tenets to challenge the vocational opinions.

 

Conclusion

 

VE’s opinions can be valuable on several points: their education, qualifications, methodology, resources utilized in formulating their conclusions on vocational outcomes and calculations. Attorneys may benefit from retraining and utilizing their own VE to assess and identify weaknesses in an opposing VE methodology and opinion.

 

 ---Allan S. Billehus M.S., Ed.S., LPC, CRC is a vocational consultant in Atlanta, Georgia. A certified rehabilitation counselor, Licensed Professional Counselor, and vocational consultant since 1996, Allan completed his Masters and Educational Specialist Degree at Georgia State University under Dr. Roger O. Weed. If you would like to have a free list of specific questions to challenge a vocational expert, I have one that is available upon request. To Contact Allan, call 404-735-6900 or email him at Linked In. 

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Divorce Vocational Evaluation - Alimony and Spousal Support

VOCATIONAL EVALUATION IN FAMILY LAW CASES  is focused on  factors involved in Determining Alimony and Rehabilitative Alimony.

Allan Billehus's insight:

 

 

Vocational factors the Court Considers in a Divorce with quetions about Alimony/Spousal Support are often contested by the parties involved and require an assessment to provide the vocational facts of the situation. 

 

Alimony awards are generally based upon the needs and abilities of each party in the divorce, using factors such as:

The duration of the marriageThe standard of living during the marriageAge of spouseHealth, physical condition, and emotional state of spouseChildcare issuesThe earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills)Present income of the partiesThe rime required for job training or new educationThe extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting partyThe ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of livingThe jurisdiction of the marriage (in some jurisdictions).

 

Rehabilitative Spousal Support/Alimony:

A vocational evaluation outlines the Rehabilitative need for a spouse to  “rehabilitate” himself/herself. It is paid so that the spouse can become employed,  obtain job training, an education or job experience or become more self-sufficient. It is also given to the mother of small children so that she may stay home with them until they reach school age.

Rehabilitative spousal support is normally set for a fixed period, and and a timeline is given in a Vocational Evaluation report. The parties can agree to a time line or the courts can mandate a time line. If you are the receiving spouse you will want to make sure that your final divorce decree states that the need for spousal support is subject to review later. This means the court may look at the facts of a case and determine if spousal support should be continued, discontinued, or the amount changed.

How are “earning capacities” figured?

The court must also consider a party’s “earning capacity.” This means the amount a person can earn using his or her best efforts to earn income commensurate with his or her skills, education, and career level. VOCATIONAL EVALUATION IN FAMILY LAW CASES  also can determine if a person is earning at their true Earning Capacity and if not the court my determine Imputed Income to the spouse.

 

 

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Allan Billehus's curator insight, October 5, 2013 10:03 AM
Use of Vocational Evaluations in Divorce cases
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Vocational Experts: How to effectively Challenge in Damage Cases

Article on how to qualify and challenge a vocational Expert

Allan Billehus's insight:

                                — By Allan S. Billehus M.S., Ed.S., LPC, CRC

Vocational Rehabilitation Counselors specialize in the study of medical and psychological aspects of disability, assessing an individual’s disability to delineate functional limitations and possible vocational alternatives.  This unique and specialized knowledge places vocational rehabilitation counselors in a critical forensic role as an expert witness for the tire of fact.  The vocational expert (VE) assessment and testimony measures the scope and severity of a disability in functional and vocational limitations. This is vital in accidents that occurred and may be subject to legal claims for monetary damages.

 

The expert opinion given by a VE can be formulated to being the essential element in measuring economic damages in a legal claim.  Due to this economic loss experts rely on the conclusions and numbers provided to them by the VE, for them to calculate the total lost earnings as well as lost earnings based on work-life expectancy.

 

The VE testimony edifies the claim for damages and because of this it is vital that attorneys have a purchase to the vocational assessment process and VE training, so that they can understand the vocational recommendations and how they can challenge to vocational prognosis.

VE Qualifications

 

The expert's curriculum vitae (CV) will assist counsel to identify the expert's qualifications. Counsel will want to obtain information relating to the expert's education, licenses, certifications, training, teaching and writing experience, employment history, professional association membership. Most VE’s holds a master's degree in rehabilitation counseling, from a C.O.R.E accredited program. The training should include medical and psychological aspects of disability, work in psychological counseling, vocational testing, and working with individuals who have disabilities, job development and placement.

 

 The most respected professional certifications include:

 

Certified Rehabilitation Counselor (C.R.C.)

Certified Vocational Evaluator (C.V.E.)

Certified Case Manager (C.C.M.)

Certified Insurance Rehabilitation Specialist (C.I.R.S.)

 

Counsel may wish to consult with their retained VE on these matters.

Key points to challenge a VEAscertain if the VE has the qualifications to offer an opinionExplore the VE’s  vocational evaluation styleExamine information the VE reviewed regarding pre- and post-accident lifeDetermine and understand the opinions the VE will offer at trialResearch, identify and analyze the method and  foundation for each VE opinion

By retaining and consulting with your VE, attorneys will be better prepared to assess the opposing VE's report and opinions.

 

The Vocational Assessment

 

The purpose of a vocational assessment is to delineate the physical and mental capabilities of an individual.  The first step in an evaluation is reviewing records and possibly contacting medical and psychological providers/professionals as well as employers. Typical evaluations involve an oral interview and, if appropriate, testing.  During the interview the VE is gathering information about an individual’s work history, medical history, social and family background, educational history, military service, financial situation, and interests, as well as to determine if testing is required. The testing may include IQ, Achievement, Aptitudes, Personality, Interests, work samples and or tests of manual dexterity.  After assessing this information the VE forms a professional opinion regarding functional limitations and vocational disability.

 

Salient issues involve whether the individual is:

Ability to return to same job same employer and pre-injury income without accommodations.Ability to return to the same career, performing the same duties, and at the pre-injury salary — if accommodations or modifications are made to accommodate the individual’s disability.Capable of returning to the same career, but with different duties and lower salary than pre-injuryAbility to returning to a different career, without re-training, and a lower salary pre-injuryAbility to returning to a different career, with re-training, and a lower salary pre-injuryNot capable of returning to gainful employment ever again.

 

The VE can still assess and opine even if the injured individual was in school, a child, or hadn’t entered into the workforce at the time of the accident. The VE can determine pre-injury career goals/abilities, and ascertain if the individual would have been reasonably able to achieve those goals and what would the individual would have likely earned.

 

The attorney will want to investigate a VE’s experience and skill in administering vocational tests as well as give close attention to the VE’s methodology. Did the VE have access to the latest medical assessments and other documents? Was the VE’s evaluation comprehensive and thorough and did they VE deviate from peer reviewed and standard methodology? What tests were administered and why they were chosen, are those tests the best in assessing that ability in this particular individual? Was the VE able to identify transferable skills? Did the VE assess mitigation issues? Did the VE identify and outline vocational alternatives or just provide litigation support? Which tests were administered? Did the VE identify the individual's transferable skills? Counsel may also inquire whether the VE identified vocational alternatives or if they simply provided litigation support.

 

Salient vocational facts regarding disability and functional limitations include: age at the time of the injury; occupation and career level at the time of injury:  job title, duties, responsibilities and salary; work history; medical and/or psychological conditions prior to the injury; medical and/or psychological conditions at the time of the VE’s evaluation; and current medical conditions.  Some mitigation factors include educational history since the injury, job search, and labor market survey.

 

This information should be included in the VE’s report and from this counsel would be able to ascertain what facts and information the VE considered or failed to consider. By retaining your own VE, they can look inside the report at an increased depth and provide valuable services in this regard.

 

Medical Records Review & Assessment

 

The main component of a vocational assessment is the medical records. Many attorneys’ fail to realize the value of an independent medical examination (IME) and/or a functional capacity evaluation (FCE) to their case and this is another area where a VE can be of assistance in determining if it would be of a benefit. These two components can highlight malingering.

 

Employment, education, medical, and military records may elicit transferable skills not identified, or perhaps downplayed, by the opposing VE. This information will enable counsel to challenge the foundation and reliability of the vocational assessment.

 

Pre-Injury Educational Assessment

 

An individual’s scholastic performance and aptitude can prove to be valuable assets in a case where an individual will need to be re-trained, i.e., return to school to learn a new trade or skill.  These records are also useful in a case in which the individual was in school at the time of injury, and it is now being reported that they are unable complete the educational goal due to the injury.

 

Work History Assessment

 

Doing interviews with an injured individual’s employers, supervisors, and co-workers can provide vital information regarding and individuals work ethic, overtime behavior, job performance, salary, and advancement potential pre-injury. Also, earnings information and work history stability can be obtained from Social Security and employer records.  Did the VE do enough occupational research? Job placement agencies and sometimes “headhunters” can be a valuable source to provide objective information on general occupational requirements.

 

Loss of Earning Capacity

 

Once a VE has fully analyzes an individual’s pre-injury vocational abilities, they can render an opinion on an individual’s loss of earning capacity from the injury. Attorneys can challenge the VE opinion through the sources utilized to form the opinion.  By retaining you own VE, they may be able to uncover higher –paying occupations that the injured individual can do or be re-trained for than the ones identified by the opposing VE.

 

Work-Life Expectancy

 

This area of a VE’s opinion can vary drastically depending on the sources and data the VE uses in rendering a decision. Because of this, the VE’s opinion can be vulnerable to a challenge on their assumptions and calculations based their report of the injured individual’s ability to work in later years. Often, VE’s will report that an individual will work until they are 65 or 70 when the average retirement age is 61.5. Some VE’s or economist do not take into account idiosyncrasies of types of occupations and expected separation from employment.  Some VE’s and Economist  try to  quantify post-injury work-life expectancy from work-life expectancy tables that characterize disabilities into broad nebulous categories, e.g., mildly disabled, severely disabled, which has been successfully challenged many times.  Work-life expectancy is highly contingent on the worker traits performed in the job, e.g., physically demanding versus sedentary. It is also influenced by pre-existing medical and psychological conditions, plus must take into account work ethic and performance when information can be uncovered.  

 

VE as a valuable resources

 

VE can provide critical support to the damage portion of claims as well as appropriate vocational options for injured individuals. It behooves attorneys to understand the education and expertise of a VE and the vocational assessment process as well as the tenets to challenge the vocational opinions.

 

Conclusion

 

VE’s opinions can be valuable on several points: their education, qualifications, methodology, resources utilized in formulating their conclusions on vocational outcomes and calculations. Attorneys may benefit from retraining and utilizing their own VE to assess and identify weaknesses in an opposing VE methodology and opinion.

 

 ---Allan S. Billehus M.S., Ed.S., LPC, CRC is a vocational consultant in Atlanta, Georgia. A certified rehabilitation counselor, Licensed Professional Counselor, and vocational consultant since 1996, Allan completed his Masters and Educational Specialist Degree at Georgia State University under Dr. Roger O. Weed. If you would like to have a free list of specific questions to challenge a vocational expert, I have one that is available upon request. To Contact Allan, call 404-735-6900 or email him at Linked In. 

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Divorce Vocational Evaluation - Alimony and Spousal Support

VOCATIONAL EVALUATION IN FAMILY LAW CASES  is focused on  factors involved in Determining Alimony and Rehabilitative Alimony.

Allan Billehus's insight:
Use of Vocational Evaluations in Divorce cases
more...
Allan Billehus's curator insight, October 5, 2013 10:00 AM

 

 

Vocational factors the Court Considers in a Divorce with quetions about Alimony/Spousal Support are often contested by the parties involved and require an assessment to provide the vocational facts of the situation. 

 

Alimony awards are generally based upon the needs and abilities of each party in the divorce, using factors such as:

The duration of the marriageThe standard of living during the marriageAge of spouseHealth, physical condition, and emotional state of spouseChildcare issuesThe earning capacity of the parties(e.g., taking into account the supported spouse’s marketable skills vis-à-vis the current job market for those skills)Present income of the partiesThe rime required for job training or new educationThe extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting partyThe ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of livingThe jurisdiction of the marriage (in some jurisdictions).

 

Rehabilitative Spousal Support/Alimony:

A vocational evaluation outlines the Rehabilitative need for a spouse to  “rehabilitate” himself/herself. It is paid so that the spouse can become employed,  obtain job training, an education or job experience or become more self-sufficient. It is also given to the mother of small children so that she may stay home with them until they reach school age.

Rehabilitative spousal support is normally set for a fixed period, and and a timeline is given in a Vocational Evaluation report. The parties can agree to a time line or the courts can mandate a time line. If you are the receiving spouse you will want to make sure that your final divorce decree states that the need for spousal support is subject to review later. This means the court may look at the facts of a case and determine if spousal support should be continued, discontinued, or the amount changed.

How are “earning capacities” figured?

The court must also consider a party’s “earning capacity.” This means the amount a person can earn using his or her best efforts to earn income commensurate with his or her skills, education, and career level. VOCATIONAL EVALUATION IN FAMILY LAW CASES  also can determine if a person is earning at their true Earning Capacity and if not the court my determine Imputed Income to the spouse.

 

 

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Vocational education at 100 community schools - Republica

Vocational education at 100 community schools - Republica | Vocational Experts | Scoop.it
Vocational education at 100 community schools
Republica
Last year, the DoE had coordinated with the experts at the Council for Technical Education and Vocational Training (CTEVT) to implement the plan.
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