Vocational Rehab and Life Care Plan Hypothetical Scenarios
In providing life care plan and vocational assessments, we are often required to rely on the opinions of treating or consulting physicians regarding the foundation for future medical recommendations or likely physical restrictions that may prevent plaintiffs from returning to their pre-injury occupations. Although the generally accepted methods and standards for practicing life care planners allow us to independently recommend evaluations to obtain additional prognostic information, we are beholden to medical doctors to determine the medical necessity of future surgeries, routine medical treatments, medications, and other life care plan items. Similarly, our decisions regarding an individual’s vocational prognosis not only relies on education, work history, transferrable skills, and vocational interests but are centrally focused on the individual’s residual functional capacity. The ultimate opinion regarding a plaintiff’s post-injury physical demand capabilities is made following a functional capacity evaluation or more typically solely by a treating physician. But what happens if the physician’s opinions aren’t clear or are more nuanced?
It is a well-known principle of law that if expert testimony given in response to hypothetical questions is predicated on a statement of unproven facts, it has no probative value and should not affect the outcome of the case (Brown v. Aetna Casualty & Surety Co., 96 So. 2nd 357, 360; LA App.2nd Cir. 1957). Therefore, it is the court’s prerogative to prevent expert testimony that would unfairly bias the jury. However, when physicians forecast the likely medical course of a plaintiff many years into the future, they often present different scenarios to account for the potential outcomes. For example, the physician who releases an individual to return to work “as tolerated” may claim that at some point in the future (we don’t know when), the person will possibly/probably be unable to continue working. Or, the individual should delay having a proposed spinal surgery until “they can no longer tolerate it.”
Typically, we provide opinions that reach the greater than 50% likelihood threshold. However, physicians, either through deposition testimony or during our consultations may be unable or unwilling to comment on that likelihood, or better than 50% chance threshold. For practical reasons, our reports capture our opinions at a specific moment in time, based on currently available information. Subsequent to our report, additional depositions may be taken where doctors change their opinions, the facts of the individual’s response to health care treatments may change, or the needs of the referral source may change (upcoming mediation, trial date, etc.). For these reasons, it is typical for us to include items and opinions as a hypothetical for informational purposes. In Life Care Planning, this may mean including the cost for a surgery that is not currently recommended with a greater than 50% likelihood but may be contingent on the outcome of yet to be conducted diagnostics or procedures.
It is the court’s purview to decide the probative value of hypothetical scenarios, however, we strive to help educate the trier(s) of fact regarding the likely consequences based on the range of potential scenarios presented by the treating or consulting physicians. When our opinions rely on nuanced or contingent medical opinions, it is our practice to communicate this in the form of clearly delineated hypothetical scenarios with sufficient explanation.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or certified life care planners at Stokes & Associates please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP