North Carolina Lawyers Weekly
BY MARIA VARGAS and ASHLEY JOHNSON
Vocational services have historically been utilized by insurance companies and the defense in workers’ compensation system. However, now more than ever, it is incumbent on the plaintiff to demonstrate their case through the disability tests.
Who should you hire?
Hire a vocational consultant (VC) who has a good reputation. This may seem like common sense, but you should check out references thoroughly. Hiring a VC who only does plaintiff work, and always has the opinion that the injured worker cannot work, does not serve your client. A slanted opinion by a VC will not ultimately help the case. Look for a VC who is knowledgeable in worker’s compensation, but other types of litigation such as personal injury or disability as well. Also, look for someone who has the credential of Certified Rehabilitation Counselor (CRC) and has at least 5 to 7 years of work experience in the field.
What should a vocational assessment address?
A vocational assessment should be conducted in person whenever possible. The VC should have access to all medical records and review them. The VC should also have access to any previous vocational and medical case management reports on the file. A thorough vocational assessment should outline current medical status to understand the claimant’s perception of disability and also the objective medical information in the file.
They should obtain a detailed work history and education. From this, the VC can determine what transferable skills, if any, the claimant has. It should be understood that in many instances with disability, someone may have skills that are no longer usable given their physical restrictions. This is why even in many cases when someone can return to work, there will be a wage loss differential. If the worker is able to obtain a job, they are often beginning at entry level and will have to work their way back up.
It is also critical to understand the claimant’s present vocational status. This would include the history of the case, along with previous medical and vocational case management activities. What has the claimant already done in an effort to return to work? What is the history of case management services?
A thorough vocational assessment should consider remedial education and the reasonableness of such education. Retraining is something that many insurers have been hesitant to support. In some cases, it makes the most financial sense. We have seen cases where tens of thousands of dollars have been spent paying a VC to meet with an injured worker weekly to review job leads. After years of these activities, the worker had not improved in skills or marketability, nor had they returned to work. The money could have been better spent sending the claimant to a community college one-year program to improve his skill set and make him more marketable to employers. The claimant would still have been drawing the compensation check (just as he was when meeting with the VC weekly), but it would have cost less than the vocational services, and actually resulted in increased skills to return him to work. Paying for school could have been a win-win situation for all concerned.
Finally, a vocational assessment should provide conclusive opinions and make vocational recommendations. Recommendations may include applying for Social Security disability, seeking retraining, or participating in a job search. Recommendations should be tailored to the individual and focus on what would maximize their potential, considering the whole picture.
How does the vocational assessment work with your theory of the case?
In Hilliard v. Apex Cabinet, the North Carolina Supreme Court laid out the three-prong test for proving disability. To support a conclusion of law of disability, the Industrial Commission must find these three elements:
The plaintiff is incapable after his injury of earning the same wages he earned before his injury,
The plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment, and
The plaintiff’s incapacity to earn was caused by his compensable injury.
Russell v. Lowes Products Distribution holds that an employee may meet his burden of proof in one of four ways, by producing evidence that he:
is physically or mentally, as a consequence of the work-related injury, incapable of work in any employment; or
is capable of some work, but has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; or
is capable of some work, but it would be futile because of pre-existing conditions (i.e. age, inexperience, lack of education) to seek other employment; or
has obtained employment at a wage less than that earned prior to the injury.
What can a vocational consultant address on the plaintiff’s side?
First, if the employee has returned to work, is it suitable? For a job to be suitable, it must be available in the competitive labor market. It must be a job for which the plaintiff is reasonably qualified and capable of doing given his limitations and restrictions. An employer cannot create a job (make-work) that does not exist in the labor market and that would not be available to other workers.
Second, under Russell, the first way to prove disability is to show medical evidence that a worker is unable to work in any capacity. You would not generally need a vocational assessment for this situation. However, more often than not, the worker will be issued work restrictions by a medical provider that will need to be evaluated by a VC in light of their skills, education, experience and geographical area. i
Third, using the second Russell test, the VC can present evidence that the claimant is capable of some work within his restrictions but that after a reasonable job search efforts, he has been unsuccessful in obtaining employment. The evidence of this includes a well documented, good faith effort to find employment which may include job search logs, listings of employers, and a review of the labor market and what is available within the restrictions and qualifications of the worker. Often the defense hired vocational consultant will actually prove the second test by conducting a lengthy, unsuccessful job search that spans months or even years. A VC can help the plaintiff by providing a vocational assessment that evaluates those job search efforts and provides an opinion on the claimant’s ability to work in light of those efforts.
Finally, under the third Russell test, the employee must produce evidence of the futility of a job search based on pre-existing conditions. An example of this would be a 60- year-old mechanic who has worked in the occupation for 30 years but is restricted to sedentary work as a result of an injury. While he has work skills, they are unable to transfer into sedentary employment. His pre-existing conditions would be age, inexperience in other vocational areas, lack of education and lack of ability to perform other work. A vocational assessment is clearly required here to incorporate all of the circumstances of the injured worker. This is often accompanied by a long, unsuccessful job search or retraining effort sponsored by the defense.
Return to work issues
It can be helpful to have a VC review the previous vocational efforts made in a case. A new VC may see vocational options not considered by previous consultants. A VC can also analyze return to work issues including offers of employment for suitability. A VC can be effective in performing a job analysis for clarification of job demands and obtaining approval from medical professionals. If needed, they can visit the claimant on the job site to observe job performance and success of the placement.
As more plaintiff attorneys use vocational assessments in their cases, they will see how vocational information can be used in a positive way to make recommendations and outline reasonable vocational goals for their clients.
Maria Vargas, MS, CRC, CLCP has owned Vargas Vocational Consulting in Belmont since 2000. Ashley Johnson, MS, CRC, CLCP is vice president of expert services.
