Daubert Standard for Admissibility When Assessing Earning Capacity
When offering opinions regarding earning capacity, the vocational rehabilitation counselor’s testimony must be based on a reliable foundation. Specific requirements are outlined in the Daubert standards, which uphold that (a) a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion if the expert’s scientific, technical, or specialized knowledge helps the trier of fact understand the evidence; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods, and (d) the expert has reliably applied the principles and methods of the facts of the case. In addition, under Daubert, the expert’s opinion needs to be based on scientific evidence that has been subjected to peer-review and publication.
A widely accepted method to assess earning capacity is the RAPEL method, subjected to peer-review and publication. RAPEL stands for:
Rehabilitation Plan
The Rehabilitation plan is based on evaluating the injured party’s vocational profile, including age, education, training, vocational test scores, limitations, strengths, and functioning.
Access
Access refers to the transferability of skills and experiences from prior occupations to alternate occupations and jobs in the labor market.
Placeability
Placeability is the likelihood that an injured person would actually be placed into employment in an occupation. Placeability is affected by many factors, such as the economic situation of the geographic area and availability of open jobs in the relevant market, combined with the characteristics of the evaluee determined by vocational rehabilitation evaluation.
Earnings Capacity
Earnings capacity is the actual comparison of what an injured person could earn before and following the onset of impairment.
Labor Force Participation
Labor force participation references work-life expectancy, lost time in the labor market, and any effects of part-time versus full-time work.
When applying the RAPEL model, the vocational rehabilitation counselor can ensure compliance with the Daubert standard for admissibility when assessing earning capacity.