Articles
Objectivity in Vocational Evaluation Reports
The Role of Job Accommodations
A vocational expert can be of assistance when there is a question about your client’s ability to work and in what capacity. As an attorney hiring a vocational expert to opine about the employability and earning capacity of your client, you will want the expert to do a thorough analysis of all the factors affecting that person’s ability to work and earn money, both positive and negative. A vocational expert should consider the potential mitigating factor of job place accommodations to assist a person with (a) functional limitation(s) to return to work.
"Reasonable Accommodations" are defined by The Americans with Disabilities Act (ADA) as:
"Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position."
The critical part of this process for your client is the determination of residual functional capacities by the vocational evaluator. Functional capacities include:
- Physical capabilities:
- Strength, range of motion
- Completing tasks in allotted time
- Maintaining work stamina/pace
- Risk of physical injury to self or others
- Intellectual/Cognitive capabilities
- Learning the Job
- Concentrating
- Following schedule/attending work
- Assessing own work performance
- Solving problems/organizing work
- Using basic language/literacy skills
- Initiating new tasks
- Psychosocial capabilities
- Ability to cope with work environment
- Social - interacting with other
- Interpreting work/social cues
- Adjusting to work situations
- Managing symptoms/tolerating stress
Job accommodations are considered as a means to enhance the person’s capabilities and remove barriers to performance. The following case scenarios identify various job accommodations that may assist injured workers to return to alternative work. The potential use of job accommodations should be evaluated by the vocational expert in light of the person’s overall medical condition (maximum medical improvement, effect of medications, stamina for work, etc.)
Case Scenario One – Low Back Injury
Client is a 45 year old construction worker with low back injury incurred in a slip and fall accident. He underwent fusion surgery at L4-L5. His treating physician has given him restrictions for lifting and carrying more than 10 lbs, standing, reaching and repetitive bending. Potential accommodations:
- Ambulation – workstation at job site located to reduce need to walk, electric scooter, cane
- Reaching & Bending - ergonomic workstation, reacher/grabber
- Sitting – ability to sit and stand as needed, ergonomic chair
- Standing – sit/stand stool, adjustable desk/table
Case Scenario Two – Upper Extremities Injury
Client is a 28 year old Administrative Assistant with right and left wrist injuries in a motor vehicle accident. She underwent carpal tunnel release surgeries to both wrists with minimal improvement. Her treating physician has given her restrictions for lifting, carrying, handling, grasping, finger dexterity, manual dexterity. Potential accommodations:
- Handling & Grasping – telephone headset, electronic page turner
- Finger Dexterity – modified pen grips, alternative keyboard, speech recognition software
- Manual Dexterity – document holder, ergonomic work station
It is not always possible or feasible to implement job accommodations to assist injured individuals to return to work. The person may not be able to sustain work activity even with accommodations. They may not be medically stable and have not been released by their treating physician(s) to return to work activity. The person may not have sufficient transferable skills to be qualified for alternative work. The accommodations may place an undue hardship on the employer. Not all employers are versed in the existence of various accommodations. They may consider them disruptive or costly. Oftentimes, a vocational rehabilitation counselor will need to intervene on behalf of the injured person to explain and advocate for the accommodations.
Practice Tools
When a treating physician or defendant medical expert is opining that the plaintiff is no longer capable of performing their former work duties but could perform some type of less physically strenuous work or less cognitively demanding work, a vocational expert can help you to determine the feasibility of return to work for your client.
The first determination is whether the person has transferable skills for any work that is available in reasonable numbers in their local labor market. Transferability of skills is determined by comparing the person’s pre-injury vocational profile, which is based on the person’s employment history, educational background, and vocational testing results, to the demands of jobs.
In order to make this determination, the vocational expert will need from you; the full range of medical opinions, documentation regarding the person’s work history and educational records if available.
The second determination is whether your client has sufficient transferable skills to be considered employable. If your client has high levels (determined by the extent to which aptitudes, intellectual abilities and physical abilities match or exceed the demands of jobs) of transferable skills for a variety of jobs, they would be considered to have levels of transferable skills. If they have low levels of transferable skills, the person is likely to require job re-training in order to be return to work.
The third determination is the feasibility of return to work. This analysis involves analyzing several factors, including the person’s medical condition and prognosis for improvement, the person’s intellectual capacity for job retraining, physical ability to participate in training, state of the labor market and need for job accommodations.
A vocational expert’s opinion about employability is less necessary when the injury is catastrophic and the person’s loss of physical or cognitive functional ability is not being disputed. The vocational expert can still be helpful in determining loss of earning capacity by establishing rate of earnings for a particular occupation in the client’s local labor market.
When you are doing direct examination of a vocational expert, you can assist the jury to understand these concepts and how they apply to your client by asking questions, such as:
Please explain, what is a transferable skill?
How has my client’s transferable skills been affected by his/her injuries?
What is a job accommodation?
Why would an employer offer one to a job candidate?
What is the American’s with Disabilities Act?
Does it apply to my client?
Would my client be eligible for job accommodations? Why/Why not?
If my client received job accommodations, would it increase either their employability or earning capacity? Why/Why not?
In cross examination of a vocational expert who is working for your adversary in the case and has opined that the person is employable, the following questions may be helpful:
You have opined that my client can do X number of jobs. Would he/she need job accommodations to perform any of those jobs?
If the answer is yes:
What accommodations would my client need in order to return to work?
Isn’t it true that my client would have to be a qualified applicant, able to perform the essential tasks of the job, before they would even be considered for job accommodations?
If the answer is no, do your homework about the physical and intellectual requirements of the jobs identified by your adversaries vocational expert and compare the requirements to your client’s limitations as identified in the medical record. For example:
According to treating physicians, my client should refrain from lifting or carrying more than 5 pounds.
The jobs you have identified all require that the person lift or carry 20 pounds or more. Wouldn’t you agree that according to treating physicians, my client does not have the capacity to perform all of the essential tasks of these jobs?
It is important for your vocational expert to address the role of job accommodations as a mediating factor in return to work issues identified in his/her report in order to be thorough and objective in their analysis. Secondarily, their opinions on employability and earning capacity will be less vulnerable to challenge.
Charles A. Kincaid, Ph.D, CRC, F-ABVE, ATP, CLCP
Licensed Rehabilitation Counselor (N.J. Lic# RC00042)
Certified Vocational Rehabilitation Counselor
Fellow, American Board of Vocational Experts
Assistive Technology Practitioner
Certified Life Care Planner
Dr. Kincaid is the President of Kincaid Vocational & Rehabilitation Services. He is a licensed and board certified rehabilitation counselor, with extensive experience in the field of vocational rehabilitation, having worked in public, nonprofit and private sector rehabilitation programs. Dr. Kincaid is a graduate of the University of Syracuse with a Doctor of Philosophy degree in Rehabilitation Counseling. He has specific expertise in vocational evaluation and assessment, job placement, career counseling, life care planning. Dr. Kincaid brings the added perspective of an Assistive Technology Practitioner to his work. His expertise in evaluating the Assistive Technology needs of individuals with functional impairments, allows him where possible to recommend workplace accommodations and assistive technology to aid in return to work.