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The Four Main Pillars of an Expert Witness

1) Qualifications

The expert is qualified to opine on the case if and only if his or her professional knowledge and skill set will assist the jury in better understanding the evidence. The expert’s knowledge must be above and beyond the knowledge of the jury. He or she does not necessarily have to be the best in the field, nor have all of the facts regarding the case, as long as his or her expertise is relevant.

2) Reliability

The expert’s testimony is admissible so long as the expert uses unambiguous data and follows the standard of practice in his or her field of expertise.

3) Helpfulness

An expert is not considered helpful if his or her assumptions do not apply to the facts of the case. The expert must provide information that is new and not obvious to the jury, making sure that there is no analytical gap in their reasoning.

4) Foundation

The expert’s opinion must be based on foundational facts agreed upon by other experts in the same field. The facts from which the expert derives their conclusion must be accurate and pertinent to the issue of the case.

A vocational assessment consists of an evaluation of your education, background, and skills, the requirements and demands of your occupation and specific position, and the nature of your disabling medication conditions. A vocational expert reviews various documents, such as job description, resume, educational records, and medical records, in order to create a vocational assessment. The process of developing a vocational assessment also necessitates usage of various vocational resources and experiences to fully explain your inability to work based on your medical conditions.

Ultimately, a vocational assessment functions as an expert opinion about your ability to perform your own occupation or any other occupations. The assessment is based on a comprehensive analysis of your job duties and responsibilities and your inability to meet those demands due to your medical conditions.

This analysis is likely to be far more thorough and accurate in terms of explaining your current level of performance, job skills, medical conditions, and the requirements of your job. An assessment will give more information to the insurance company that they can get by simply looking at copies of your job description and resume. Furthermore, the assessment will explain specifically why and how you can no longer meet the requirements of your occupation.

The goal of a vocational assessment often is to objectively prove that you cannot perform at least one required function of your job due to your disabling conditions. There is no requirement that you prove yourself unable to perform any or all of the required functions of your job; it often is sufficient to qualify for benefits if you cannot perform or complete at least one major job requirement. A vocational assessment can be a useful tool in demonstrating your inability to work and eligibility for long-term disability benefits.

According to the agreed-upon definition, “The life care plan is a dynamic document based upon published standards of practice, comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and future needs with associated costs for individuals who have experienced catastrophic injury or have chronic health care needs.” (International Conference on Life Care Planning and the International Academy of Life Care Planners. Adopted 1998, April.) It is a way to plan for the lifetime needs of an individual with a disability.

According to life care planning methodology, topics which are considered for inclusion in a life care plan include evaluations, therapies, diagnostic testing, medical and adaptive equipment, aids for independent functioning, prescription and nonprescription medications, home care/facility care, routine medical care, transportation, architectural modifications, potential complications, surgical intervention, and vocational services. There is a standardized procedure for gathering information to develop a life care plan, including doing an interview with the client and family members, reviewing medical records and supporting documents such as depositions, day in the life videos, school records, employment records, and tax returns, consulting with treatment providers and/or experts, and researching costs and sources for treatment.

Life care planners are a diverse group of rehabilitation professionals representing nurses, rehabilitation counselors, occupational therapists, physical therapists, social workers, physicians, and psychologists. Life care plans are used in workers’ compensation claims, civil litigation, mediation, reserve setting for insurance companies, federal vaccine injury fund cases, discharge planning, Medicare set-asides, elder care, and other arenas. Life care planning is an established field with national certifications, professional organizations, research, role and function studies and published standards of practice. Life care planning precertification programs are offered which provide 120 hours of specialized training to meet the educational requirements necessary to sit for the Certified Life Care Planner (CLCP), Canadian Certified Life Care Planner (CCLCP) or Certified Nurse Life Care Planner (CNLCP) exam.

The typical assignment for vocational rehabilitation counselors in litigated personal injury cases includes the questions: “What was the plaintiff’s wage-earning capacity before the injury, and what is their wage-earning capacity after the injury?” Key to answering these questions are the concepts of actual earnings, expected earnings, and earning capacity.

Actual or demonstrated wages are historical earnings established through employment and compensation records such as social security earnings, tax returns, W-2 records, or pay stubs. In cases where there is an established work record, actual earnings can be a good measure of the pre-injury wage-earning capacity. Variables such as full-time versus part-time labor force participation and propensity to work are important in assessing whether actual or demonstrated wages are the most appropriate metrics for describing pre-injury earning capacity.

Expected earnings are estimated wages related to the plaintiff’s vocational profile. Expected earnings are determined based on the typical wages, usually given in a range, paid for occupations and jobs that a person could have worked in the past or can work in the future. For example, if a worker demonstrated the ability to earn $20 per hour in the past, we can expect they would have earned $20 per hour in the future but for an intervening incident. Expected earnings do not consider the worker’s efforts to maximize earnings by working the maximum number of hours at the highest-paid job they can perform.

Wage-earning capacity is the value an individual can expect to earn if they choose to work to their capacity. The estimates are based on the expected wages paid for particular occupations as determined through published statistical wage data and labor market research. However, wage-earning capacity is not always the maximum amount of wages related to an occupation in the labor market. Therefore, individual personal factors need to be brought into the assessment process.

The assessment of wage-earning capacity versus actual earnings should be used if there is not a well-established pattern of work suggestive of a history of working at capacity. For example, while finishing nursing school, an individual chooses to work in a nursing home as a Certified Nursing Assistant (CNA) and is subsequently injured. Their pre-injury earning capacity could be based on their demonstrated or actual wages as a CNA; however, it may be more appropriate to base the pre-injury earning capacity on the statistical wages for nurses.

The determination of pre and post-earning capacity is specific to the individual’s vocational profile, including age, education, training, work history, skills acquired and transferable skills, vocational test results, and physical and/or cognitive capacities. Therefore, vocational rehabilitation counselors need to consider the most appropriate method for communicating earnings in forming opinions regarding residual earning capacity.

A Labor Market Survey is typically based on the results of a Functional Capacity Evaluation and will contain a list of actual jobs that the vocational rehabilitation counselor claims are within the employee’s physical limitations, education history, and present work skills.