V OCATIONAL E CONOMICS, I NC.

Transcription

1 V OCATIONAL E CONOMICS, I NC. This document was downloaded from Vocational Economics Inc. ( For more information on this document, visit:

2 DEFINING VOCATIONAL ECONOMIC DAMAGES IN TRAUMATIC BRAIN INJURY CASES Joseph R. Spoonster, M.S. It is difficult for most jurors to understand the devastating impact of often invisible brain injuries. As many as 1.2 million persons a year sustain brain injuries in the United States. Most survive; the very fortunate ones return to an unimpaired life. But, for an estimated 300, ,000 people, life is no longer the same.1 Brain injury may result in coma or a lasting loss of physical and/or intellectual function.2 The successful presentation of a personal injury case involving mild to moderate traumatic brain injury (TBI) is a complicated and challenging endeavor for any attorney. While the degree of loss for each individual may differ, the personal, social, and vocational economic ramifications of brain injury can be profound. However, it is difficult for most jurors to understand the devastating impact of often invisible brain injuries. The situation is further complicated when such injuries are frequently described as mild or moderate impairments in medical and neuropsychological records; terms which relate to mortality or the probability of survival, not to occupational competence. The primary limitations that arise following brain injury have been identified as psychomotor and cognitive processing slowness, cognitive-communicative disorders, emotional and social behavioral control problems, and inept or inadequate interpersonal skills.3 A number of researchers cite substantial findings of social and behavioral problems up to five years post trauma, including persisting emotional liability and disturbed behavior over a 10 year period. Several reports indicate depression after head injury may actually increase with time rather than abate. Others document an increase in emotional problems while physical problems are decreasing.4 There are significant indications that an overwhelming number of individuals with TBI do not return to work post-injury; or, if they do return, they may not be successful. Studies describe unemployment rates ranging from 46% to 73% of various TBI populations up to four years post injury.5 Even after substantial rehabilitation services, employment outcomes are limited. One study tracking a population of 248 brain injury patients found that while 94% were employed pre-injury, only 50% were competitively employed post-injury (after two years, six months rehabilitation); 11% were employed in non-competitive work; and 39% were not employed.6 In a four-year follow-up study tracking employment outcomes for a population of 142 brain injury cases during and after vocational rehabilitation services, the following observations were noted: 30% of the population did not go into a coma following injury; 25% were in a coma state seven days or less; and 75% of the total population were successful in obtaining employment. However, in examining these data, the outlook is not so bright. Of those employed, one-half work full-time; the average hours worked per week is 31, and the average wage is $8.50 per hour. The proportion of time worked (percentage of months) of available time is 56%. At the last follow-up analysis, only 55% remain employed.7 An

3 overwhelming number of individuals with TBI do not return to work post-injury. If they do return, they may not be successful, even when the injury did not produce a coma. Classification and Symptomology Persons suffering brain injury that results in a prolonged coma are characterized as severely brain injured. About 12% of all brain injuries are classified as severe. Approximately 8% are classified as moderate and are associated with both physical and cognitive impairment which follows an initial period of unconsciousness and may include post-traumatic or event-associated amnesia. These patients can experience problems with judgment, reasoning, planning, and speaking. Paralysis, seizures, and poor coordination often result from moderate brain injury. Head injuries, however, do not have to be dramatic in their inception or manifestations. Most, approximately 80%, produce subtle changes, beginning with no period of unconsciousness or one that is brief. Neurological examinations may reveal no abnormalities. Neuropsychological examinations may lean toward a diagnosis of emotional problems, such as depression or anxiety. However, permanent impairment often results from so-called mild head injury. Subtle changes in behavior and performance can confound both the patient and their family, friends, and associates. These deficits can last for varying time periods and often persist for life. Patient complaints involve difficulty comprehending what is read, problems attending to tasks, and not hearing (or, more correctly not being able to comprehend) verbal conversation. Patients cannot process new information quickly or effectively. They describe memory problems, particularly when there are multiple demands for attention such as two or more people talking, or being interrupted by a telephone while doing something else. Quite frequently, the person complains of episodes of dizziness that are sometimes associated with nausea. Symptoms such as headache dizziness, irritability, anxiety, easy fatigability, concentration, and memory difficulties may persist for months or years, even when a person is diagnosed with a concussion and no overt signs of brain injury can be found.8 Occupational Disability The U.S. Department of Commerce, Bureau of Census, defines any individual who has suffered a mental or physical impairment which results in a reduction in the kind or amount of work performed as occupationally disabled. Limitations may exist in an individual s ability to be at work, to attend to work tasks, or meet work or job requirements. This includes both production or output measures in time or quality performance as well as less defined social interaction processes connected with the job. When the labor force status and earnings of persons with a work disability are examined, there are two significant facts: 1. On average, disabled persons work less over a lifetime than non-disabled peers. 2. When they do work, disabled persons, on average, earn less. It is important to note that the data which describes these reductions in earnings and in worklife parameters are based upon observations of persons in the labor force who have disabilities. When the work experience and mean earnings of all disabled workers as well as those disabled workers in full time employment are compared with their nondisabled peers, disabled workers earn less.9 The earnings data

4 compare working people with working people; the only difference in the two groups is that one group has work disabilities. In assessing lifetime earnings loss sustained by a brain injured person, the attorney must find a way to translate the cognitive behavioral and physical deficits associated with such injuries into vocationally relevant concepts which a jury can identify with and understand. There is an emerging class of vocational rehabilitation professionals who work with brain injury survivors and have the ability to define loss of earnings capacity related to disability. Why a Vocational Economic Analysis A vocational economic analysis reviews an injured person s pre-accident educational, work, and earnings records and post-injury medical, vocational, and neuropsychological records and makes a determination on two issues: (1) Can the person still work in the world of competitive employment and, if so, what areas or types of employment are still realistic with or without retraining; and, (2) If partially or completely disabled, what is the projected lifetime loss of earning capacity stated in terms of present value. Understanding the difference between impairment and disability is important because earning capacity varies as a function of disability, but not impairment. A medical impairment rating is not a predictor of loss of earning capacity. One of the most valuable definitions contributing to our understanding of disability has been advanced by the American Medical Association. Impairment means an alteration of an individual s health status that is assessed by medical means; disability, which is assessed by nonmedical means, means an alteration of an individual s capacity to meet personal, social, or occupational demands, or to meet statutory or regulatory requirements. Simply stated, impairment is what is wrong with the health of an individual; disability is the gap between what the individual can do or wants to do.10 Medical impairment ratings are often seen in work-related disability cases. These ratings represent a physician s description of anatomical losses stated in terms of a percentage of lost body part, system, or function in comparison to a whole bodied or unimpaired person. For example, the loss of a thumb can translate into a 40% impairment to the hand which translates into a 36% impairment of the afflicted upper extremity (arm) which can be reported as a 22% impairment of the whole body.11 It is an egregious error to assume that a medical impairment rating represents an equivalent loss of earning capacity or employment potential. The rating does not speak to disability: the gap between what the person could do and now is unable to do in the workworld. Whenever the injured person is receiving rehabilitation services under the domain of state or federal statutory bodies, the issue of disability is moot. A prerequisite for such services is a statutory finding of disability which implicitly means a vocational or occupational limitation. The only issue that remains in these cases is determining the extent of lost earning capacity, or conversely, residual occupational competence and earning capacity. The Vocational Economic Analysis A vocational economic analysis addresses five key elements which need to be explored to help the jury understand the impact of disability in the working life of a particular injured person.

5 1. Pre-Injury Earning Capacity This is the foundation upon which loss estimates are built. A person s capacity to earn is the product of a number of factors. These include age, gender, education, and occupational preparation. In some cases, capacity to earn is best represented by actual earnings; in other cases by a proxy measure, such as average earnings for a comparable peer group, e.g., high school graduates, persons with average learning ability. 2. Pre-Injury Worklife Expectancy This is another foundation measure. No one can be certain how long any given individual will work over his or her lifetime, just as we do not or cannot know how long any given person will live. However, demographic studies do provide a means of determining how much a worker can reasonably expect to work over a lifetime. A frequently misleading assumption is that worklife expectancy directly corresponds to either life expectancy or some nominal retirement age, such as 65. Simply stated, worklife expectancy is the probable total span of years a person can be expected to work. It is an average for the population which considers both voluntary and involuntary absences from the labor market. Worklife expectancy is age, gender, education, and disability versus non-disabled specific. 3. Post-Injury Earning Capacity In 1988, the mean earnings of all employed workers with a work disability was $12,253. In contrast the mean earnings of all nondisabled workers was $18, This is a 35% reduction in mean earnings for employed people, when the only consideration is the presence of a work disability. It does not speak to the severity of work limitations or other factors which may further limit the capacity to earn. Such an analysis utilizes the professional training and experience of the vocational economic analyst to determine residual earning capacity as a function of the occupational limitations imposed by injury. 4. Post-Injury Worklife Expectancy Research conducted by the U.S. Department of Commerce, Bureau of the Census, demonstrates that the worklife expectancy of occupationally disabled persons is less than that of nondisabled peers. There are a number of appreciable reasons for this observation: disability tends to restrict occupational choice and access to jobs in the labor market; disability tends to restrict advancement up career ladders; disability may lead to more frequent involuntary separations from employment, due either to an inability to perform job demands satisfactorily or for health reasons, due to the nature of employment available to the disabled worker. Worklife expectancy varies significantly as a function of disability status. A nondisabled 45-year old male with less than 12 years education has a worklife expectancy of 16.5 years, while a disabled counterpart has a worklife expectancy of 4.2 years.13 Because worklife expectancy is a statistical average, it is important to have a vocational economic analyst state an opinion as to whether the specific disabled person in question has a worklife greater or less than the statistical average. 5. Present Value Calculation The final step in the presentation of lost earning capacity is an opinion regarding the present value of the award. In simple terms, present value can be defined as the amount of money the client needs to have in hand to replace a lost stream of future earnings. In the past, it seems as though an overemphasis on economic forecasting issues has dominated courtroom testimony, often displacing the poignant and devastating stories of people whose lives have been irrevocably changed by disability. It is necessary to predict both the rate of real interest and real wage growth or assume that a fixed relationship between the two factors will exist into the future in order to increase or decrease the present

6 value of a future loss of earning capacity. Discounting a future sum to present value requires an assumption that the past will somehow predict the future behavior of real wage growth and real interest. Without such an assumption, a total offset method is used. The advantage of a total offset method is simplicity; it is easily understood and can be translated into terms the average person can appreciate. Demonstrating Earnings Loss Consider the following TBI case as an example. We have a male, age 23, a high school graduate, employed, and injured in a motor vehicle accident, who suffers what is described as mild brain injury. The worklife expectancy of an average 23-year old male high school graduate who is nondisabled is years; that of an average disabled person with the same educational attainment is years. A typical assessment of earning capacity may reflect the following information: Pre-injury annual earning capacity (male, high school graduate): $33, Post-injury (male, high school graduate, disabled): $30, Pre-injury lifetime earning capacity: $1,183, Depending on the severity of occupational limitations experienced by our 23-year old male, the vocational analyst will make a determination of how best to represent this client s future probabilities of participation in the labor market and employment. Continuum Placement When worklife expectancy is viewed on a continuum, the vocational economic analyst can help the jury understand the extent of disability. This is a crucial role which draws upon the expert s understanding, training, and experience in vocational rehabilitation, disability assessment, and job placement. Without an accurate understanding of the employability problems faced by persons with a disability, it is very difficult for a jury to determine whether or not earning capacity losses are reasonable. In this example (see Figure 1), the continuum description of worklife capacity represents where an individual might be placed between an average nondisabled person and an average disabled person. The expert uses his or her professional judgment, along with the particular factors of each case, to make that determination. In each circumstance, the lifetime loss of earning capacity will differ and represents the gap or loss due to disability. A dramatic loss in worklife capacity occurs as one moves along a continuum from a nondisabled to a disabled status. If our 23-year old s employment in the labor market, post-injury, is deemed to be most likely that of an average nondisabled person, the loss of future earning capacity is $112,522. If most like that of the average disabled worker, the loss is $706,804. The example demonstrates the powerful impact of disability. Such a loss would not be apparent to a jury if just earning capacity pre- and post-injury were considered. Nor would the presentation describe the extent of the disability in terms of limitations in the ability to be a participant in the labor market and be employed without considering the change in worklife expectancy as a function of disability. Occupationally disabled persons work less and earn less than their nondisabled peers. A disabled person who returns to the same job, earning the same or even higher wage, is very likely to incur a reduction in total worklife, depending on individual circumstances. Each year of lost worklife capacity is

7 equivalent to a loss of one year s wages for that disabled worker. Figure 1 Loss of Future Earning Capacity $112,522 $261,093 $409,633 $558,233 $706,804 75% 50% 25% AVERAGE NON-DISABLED CONTINUUM AVERAGE DISABLED Conclusion A variety of factors must be considered in defining vocational economic damages. Earning capacity and worklife expectancies are the two primary parts of the equation. In cases of partial disability, this is a crucial consideration. Without considering both factors, post injury lifetime earnings will be overstated, and loss of lifetime earnings will be understated. The vocational economic analyst helps the jury understand how occupational disability and the interaction of lost ability to participate in the labor market, to compete for jobs, and to be employed results in a loss of earning capacity. Fair and reasonable worklife and earnings loss estimates can provide a jury with a credible yardstick for measuring the total loss associated with brain injury. Endnotes 1. S. K. Chandler et al., The Relationship Between Vocational Decision Making and Vocational Status of Individuals with Traumatic Brain Injuries, VEEWA Bulletin, Winter 1993, Edwin Shaw Hospital, What Is Brain Injury: A Rehabilitation Handbook for the Family, Akron, Ohio, W. Haffey and F. D. Lewis, Programming for Occupational Outcomes Following Traumatic Brain Injury, Rehabilitation Psychology 34, no. 2 (1989): L. A. Burton and R. Volpe, Social Adjustment Scale Assessments in Traumatic Brain Injury, Journal of Rehabilitation, October 1993, S. K. Chandler et al., Id. 6. R. W. Evans and R. M. Ruff, Outcome and Value: A Perspective on Rehabilitation Outcomes Achieved in Acquired Brain Injury, Journal Head Trauma Rehabilitation 7, no. 4 (1992): D. Adams et al., The Economics of Return to Work for Survivors of Traumatic Brain Injury: Vocational Services Are Worth the Investment, Journal Head Trauma Rehabilitation, 8, no. 4 (1993): L. M. Binder, Persisting Symptoms After Mild Head Injury: A Review of the Post Concussion Syndrome, Journal Clinical and Experimental Neuropsychology 8, no. 4 (1986):

8 9. U.S. Department of Commerce, Bureau of the Census, Labor Force Status and Other Characteristics of Persons with a Work Disability: , Series P-23, No. 160, Table 9, A. L. Engelberg (ed.), Guides to the Evaluation of Permanent Impairment, 3rd Edition (Chicago: American Medical Association, 1988): Engleberg, Id. Tables 1, 2, U.S. Department of Commerce, Id 13. A. M. Gamboa, Jr., The New Worklife Expectancy Tables. (Louisville: Vocational Economics, Inc.,1990): Tables 1 and 4. Author Joseph R. Spoonster, M.S., is a Vocational Economic Analyst affiliated with Vocational Economics, Inc. Cleveland, Ohio. He is a board certified Vocational Expert and Diplomate of the American Board of Vocational Experts. He maintains an active rehabilitation practice in affiliation with area hospitals dealing with the disability aspects of head injury and spinal cord injuries Compliments of VOCATIONAL ECONOMICS, INC. For the office nearest you, please call Reprinted with permission of Ohio Trial (November 1995)