Vocational Rehabilitation Experts in the Litigation Context. Presented by Scott Haworth March 22, 2011

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1 Vocational Rehabilitation Experts in the Litigation Context Presented by Scott Haworth March 22, 2011

2 PART ONE WHAT DO THEY DO?

3 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

4 Psychologists Neuropsychologists Qualifications 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.

5 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

6 Records Review Process 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

7 5-Point Physical Demand Scale Sedentary Sitting 6-8 hours/day & 10 lbs. or less Light Work Stand/walk 6-8 hours/day & lbs. Medium Work Standing & walking/20-50 lbs. occasionally & lbs. frequently Heavy Work Standing & walking/ lbs. occasionally & up to 50 lbs. frequently Very Heavy Work Standing & walking/100 lbs. occasionally & 50 lbs. plus frequently U.S. Department of Labor

8 Perdue Peg Board (hands) Testing 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)

9 Other Areas Tested Reading Spelling Arithmetic Grip Strength Identify One of Four Skill Levels Identify Physical Capability

10 PART TWO VOCATIONAL REHABILITATION IN THE COURTROOM

11 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

12 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?

13 Preclusion/Qualifications New York State Court: General acceptance standard -- Frye v. United States, 293 F (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.

14 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)

15 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

16 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 (N.Y.Ct.Cl. 2002) wherein Court considered life care plans of Richard Schuster and Wendy Cummings

17 No Foundation Plaintiff was injured when he ingested E. colicontaminated 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 (1 st Dept. 2005)

18 Attacking the Bases for Plaintiff s Expert s Opinions (a/k/a Garbage In/Garbage Out)

19 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

20 Length of Time Who Interview? Lawyer Present? Plaintiff Appear to Be: Attentive? Interview Able to Answer Questions? Consistent With Records? Polite? Juxtapose With Performance Reviews/Depo. Testimony

21 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

22 Psychiatric Overlay Post-Traumatic Stress Disorder Depression Egg Shell Skull Plaintiff ( ) Post-Concussion Syndrome MRI CAT Scan PET Scan EEG

23 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

24 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

25 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

26 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!

27 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

28 PART THREE INTERPLAY BETWEEN THE VOCATIONAL REHABILITATION EXPERT & THE ECONOMIST

29 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

30 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

31 QUESTIONS COMMENTS DISCUSSION

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