Our highly credentialed vocational rehabilitation and life care plan experts write about topics that are important and relevant to our areas of practice. If you have a vocational or life care planning topic you would like to learn more about, please contact us to request a blog post on that topic.
Expert Witness Credentials: Making Sense of the Alphabet Soup
When engaging an expert witness to assist you at trial, it is important to ensure that your expert has the necessary training, experience, licensure, and credentials to appropriately inform and educate the trier(s) of fact. We are often asked to explain our professional credentials both formally in deposition or trial, and informally when talking with those who might be seeking our help with vocational rehabilitation or life care planning assistance. In general, credentials, or the letters that follow an expert’s name fall into three main categories: Education, Licensure, and Certification.
Educational attainment or a person’s highest educational degree is usually expressed for achievement above the bachelor’s level. The Ph.D. is technically a doctorate of philosophy in a given field. Both Drs. Stokes (Doctor of Counselor Education) and Wolfson (Doctor of Psychology) have completed Master’s degrees and written and defended doctoral research dissertations in their respective fields. These are NOT medical degrees, and our experts do not offer medical opinions. Degrees such as: M.S. (master of science), M.Ed. (master of education), M.H.S. (master of health science), M.S.W. (master of social work) are commonly listed after the name and may appear for experts in our field. In the case of Life Care Planning, it is possible to see some R.N’s (registered nurse) or even M.D.s.
Licensure is the next most important credential, and refers to the expert’s legal authority to practice their occupation in a given state. For rehabilitation counselors, the L.R.C. (Licensed Rehabilitation Counselor) designation indicates that we have passed the state licensure examination and met minimum educational requirements to practice. This licensure also implies our successful maintenance of continuing education requirements. Licensure in rehabilitation serves to protect the consumer against shoddy or potentially harmful treatment. L.P.C. (Licensed Professional Counselor) is the state licensure for Master’s level clinicians to practice mental health counseling in Louisiana.
Certification is a voluntary or optional designation indicating that experts have met minimum requirements by certifying bodies. The C.L.C.P (Certified Life Care Planner) designation is earned when practitioners complete the required 120 hours of post-graduate training in Life Care Planning and successfully pass the certification examination. This certification is no indication of a practitioner’s actual skill or experience in the field, just that they have met those minimum requirements. The C.R.C. (Certified Rehabilitation Counselor) is the vocational rehabilitation equivalent of the C.L.C.P, and the C.C.M. (Certified Case Manager), is earned by individuals who work in case management.
It is not the collection of letters behind an expert’s name that makes them effective, however choosing an expert with the right credentials assists in establishing a base level of forensic credibility. The expert’s ability to analyze complex information, offer clearly written defensible opinions and then explain those opinions to judges and juries are the ultimate measures of our effectiveness in litigated cases. We offer complimentary consultations concerning "hypothetical matters" To strategize with one of our vocational experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Records, What Do We Request and When Do We Need Them?
Many times we are asked what documents or records we request to conduct a Vocational or Life Care Plan Assessment. At times we are asked if we “want” everything or can a summary or a few documents suffice. We are even asked when we want to receive the records.
Our answer is always a steadfast “we would like to see everything that is pertinent to our role in the evaluation of the case” and “we would like to see it as soon as practical”. To help define what that would include, the following is a discussion of requested documents and records. Please keep in mind that cases vary and some of the records may not exist, so we take what is available.
Regarding the issue of when to review them, it is better to have extra time than to have to rush through them, which increases the chance for error by missing something important.
Medical reports, Independent Medical Exams and Other Expert reports:
We would like to receive for review any treating and/or consulting physicians’ narrative reports, particularly those that address diagnosis, prognosis, current medical status, physical or mental restrictions or limitations, surgical reports, and in the Vocational case any statements discussing return to work capability.
For Life Care Plans we prefer to consult with or meet the physician(s) to determine future medical care based on medical necessity, after reviewing the documents. As a method, we consider all opinions in a case.
Of particular importance is the receipt of any Vocational or Life Care Planning Expert, so that we can critique any strengths, weaknesses, opportunities and problems with the assessment. Other expert reports can include Psychologists, Physical Therapists, and FCE reports.
This group also includes forensic economist reports as well. If the plaintiff has participated in State and Federal Vocational Rehabilitation programs this information is also important. From this we determine a vocational profile and participation with rehabilitation planning and goals.
In Longshore and Defense Base Act Cases, the OWCP-5 is extremely important because it outlines physical limitations.
Depositions, Accident Reports, and IRS/Social Security Records of Wages:
There is much information found in depositions of the plaintiff, physicians, and other experts, such as psychologist, economists, and other rehab experts.
Because we are not involved in the determination of liability, but are more involved in the damages portion of the case we do not usually need depositions or statements of fact witnesses, depositions or reports of others experts such as biomechanics, product failure or accident reconstruction.
It is important to review Workers’ Compensation records, particularly First Report of Injury.
IRS records tell wages, however in the case of contract or self -employed workers, gross earnings, expenses and net earnings are very important. We prefer the Social Security reports in most cases.
Notice of representation, Signed Release of Information, Interrogatories and Responses:
Whether engaged by the plaintiff or the defense we need to know who is involved; who represents whom.
In the case of co-counsel or multiple defendants, we need to know all who are involved in the case.
Due to HIPAA and HYTECH it is increasingly important to obtain the plaintiff’s signed authorization for the release of information. If you are going to share protected medical information you should have a release.
We obtain the releases to consult with other experts involved in the case, however when engaged by the defense we do not believe that we are to communicate with treating physicians or other treating professionals outside the presence of the plaintiff or their representative.
Interrogatories and responses contain useful information regarding the plaintiff’s history and the damages sought in the case.
Social Security Disability and Medicare Set Aside Plans:
Although the rules of “disability determination” differ between legal venues and types of cases, it is often helpful to review decisions and conclusions reached in SSDI cases, to consider facts considered in the decision.
Many times Life Care Plans are used to develop Medicare Set Aside Plans, however when a Set Aside has been developed before a Life Care Plan, we can use the Set Aside to help develop the Life Care Plan.
When developing Life Care Plans and researching costs, we follow the standard method of researching costs in the relevant geographic area for medical services, supplies and equipment.
To schedule a complimentary consultation concerning a "hypothetical matter" with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Life Care Plan Vs. Vocational Assessment, What Are The Differences?
At Stokes & Associates we provide a number of different types of evaluations to help inform ongoing litigation in several ways. Here are a few of the ways Stokes & Associates assists you in representing your client, plaintiff or defense.
A vocational assessment is a methodical evaluation of an individual’s residual employability and earning capacity following a change in vocational status, for the purpose of quantifying losses. If future medical expenses exists, it may be appropriate to add a life care plan or medical cost analysis to quantify such costs.
A 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 medical needs. The costs of future care are calculated for individuals who have experienced catastrophic injury or have chronic health care needs. Total costs are calculated in “today’s dollars” and are generally analyzed by an economist to determine a present value of services rendered over an individual’s life expectancy.
A medical cost analysis is conducted by applying the same method used in life care planning for non-catastrophic cases. This is particularly useful in assessing costs associated with an individual’s one-time only and/or short-term medical care needs as a result of an incident, such as future surgical needs and cost associated with such treatment. This analysis may also include some routine annual care needs. The purpose of a life care plan or medical cost analysis is to appropriately fund an individual’s future medical needs, not over-fund or under-fund care.
To schedule a complimentary consultation concerning a "hypothetical matter" with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Vocational Rehabilitation / Life Care Plan Assessment Score Card Checklist
Deciding whether to assign a case for vocational assessment of loss of wage earning capacity and/or life care planning to determine the costs of future medical care can be a confusing task. We have developed a simple checklist scorecard which includes important areas of concern to help determine which cases would require an assessment and those that may not.
If you would like a complimentary “Vocational Rehabilitation Assessment and Life Care Plan Assessment” checklist scorecard, contact David Barrett at dbarrett@stokes-associates.com.
To schedule a complimentary consultation concerning a "hypothetical matter" with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Valuing Medical Impairment
Valuing lost wages in personal injury cases can be a complicated process… but it doesn’t have to be. Outcomes are dramatically improved when vocational experts use empirically-validated methods and communicate clearly to the referral source and other experts involved in the case. The experts at Stokes & Associates follow proven methodological strategies to ensure a thorough and comprehensive analysis of your case, and communicate clearly and often to work efficiently.
Our experts have helped shape the generally accepted protocols for performing vocational and life care plan assessments through important contributions to the literature.
Contact David Barrett at 504-454-5009 or dbarrett@stokes-associates.com for a complimentary copy of The Vocational Expert in Forensic Rehabilitation: Translating Medical Impairment to Economic Loss by Dr. Aaron Wolfson.
To schedule a complimentary consultation concerning a "hypothetical matter" with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Wage and Earning Capacity & LCP Questions for Interview
When we determine wage earning capacity and life care plan needs, there are areas of information that we gather. This information can also be used when deposing a plaintiff or claimant, as well as interviewing a current or prospective client to assess a claim.
If you would like a complimentary copy of our "Wage and Earning Capacity/Life Care Plan Questions" outline contact David Barrett at dbarrett@stokes-associates.com.
To schedule a complimentary consultation concerning a "hypothetical matter" with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Physician’s Opinion Report
When conducting an assessment to determine employability and wage earning capacity, vocational rehabilitation experts rely on medical/psychological information regarding physical, cognitive, or emotional limitations. A thorough review of medical records often provides information regarding the chronology of medical treatment and recommendations for future treatment.
On occasion, medical records are unclear with regard to future treatment needs and limitations. Without specific, documented restrictions, expert opinions regarding physical and mental capacities require assumptions to be made. It is helpful to confirm projections of capacity or limitations.
Stokes & Associates, Inc. has developed a Physician’s Opinion Report form to document information to strengthen expert opinions of future medical and vocational needs when records alone do not provide the information.
The report has been used effectively in settlement, mediation, conferences, consultations, depositions and at trial.
Contact David Barrett at 504-454-5009 or dbarrett@stokes-associates.com for a complimentary sample Physician’s Opinion Report form. The Report is an easy and efficient way to save time and costs in all types of injury cases.
We offer complimentary consultations concerning "hypothetical matters." To strategize with one of our experts at Stokes & Associates, Inc., 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Why Engage A Vocational Expert?
If you have ever wondered when to hire a vocational expert to assist in personal injury matters here are some issues to consider. Whether you are representing plaintiff or defense, consider referring the claimant for an evaluation, if the injured individual:
is a younger adult,
has less than high school education, with little or no training or transferable skills,
has a limited work history in physically demanding jobs,
has physical, cognitive, or emotional limitations precluding return to their pre-injury occupation or occupations they held in the past
An analysis of the ability to work and earn wages can help to determine any difference in pre versus post injury wage earning capacity.
Our experts at Stokes & Associates frequently field questions regarding whether a case requires our assistance. Given facts of the case, we may suggest an evaluation of the plaintiff to prepare for expert testimony, or to act as a non-testifying consultant to assist in clarifying lost wages, future medical costs, or other issues related to return to work.
An evaluation may not be necessary if the facts are obvious, but don’t miss an opportunity to present evidence if it can help you to advance your position in the case.
To schedule a complimentary consultation concerning a "hypothetical matter" with one of our experts at Stokes & Associates, please call David Barrett at 504-454-5009 or email dbarrett@stokes-associates.com
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
What is a Reasonable Geographic Area in a Labor Market Survey
When conducting a vocational assessment one important factor regarding vocational prognosis is where the person resides. Determining where the labor market research will take place is extremely important but just as important is clarifying the individual’s reasonable geographic area. In Louisiana, the courts have noted that the determination of what is reasonable depends on factors such as the nature of the employment region, whether the region is a city or a rural area, transportation requirements and availability to and from the job, as well as work history of the individual. Additionally, the economic impact of offered employment to the individual has been considered by the courts as to the reasonableness of a geographic area.
The type of claim and venue should be considered when determining a reasonable geographic area. For example, for longshore claims, The Department of Labor suggests "reasonable commuting distance" is a flexible term that will vary with local conditions. For rehabilitation counselors working longshore claims, the generally accepted distance for a worker to travel to a job from their home is up to 40-50 miles.
For cases involving state worker’s compensation claims, the reasonable commutable distance to a job is not as clear.
In Banks v. Industrial Roofing & Sheet Metal Works, Inc., the employer must prove by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his area or the employer's community or reasonable geographic region.
In Daugherty v. Domino's Pizza, 95-1394 (La.5/21/96), it was ruled that light duty employment thirty miles from claimant's home was not reasonable due to his physical inability to drive more than a short distance from his home. Thus, it is crucial to consider if the injured worker is restricted physically from driving and what that limit is.
Joyner v. Davison Transport, Inc., (La.App.2d Cir.1/22/97) determined that an eighty-four-mile commute four days per week for a claimant who had no reliable transportation and complained of back pain was not within his reasonable geographic region.
Mayeux v. Kentucky Fried Chicken, 28,163 (La.App.2d Cir.4/3/96 held that jobs in Vicksburg were within the reasonable geographic region of an employee who lived in Tallulah, Louisiana, twenty miles away. Similarly, in Bankston v. Scaffolding Rental & Erection Services, Inc. (La.App. 1st Cir.1987), it was determined that jobs located approximately thirty miles from the claimant's residence, were within the reasonable geographic region because the claimant had previously worked in that area and was physically capable of commuting that distance.
So, what is reasonable when considering geographic area for employment of an injured worker depends on type of claim and venue, individual circumstances in the case, the injured worker’s travel to work prior to the indexed incident, limitations on traveling if any as a result of the injury, and the justification of the labor market area by the vocational expert.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or medical cost projections experts 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Estimating Damages in Wrongful Termination Cases
The typical scenario in estimating lost earning capacity in liability cases usually involves a claim for acquired physical or cognitive restrictions that prevent a plaintiff from working in their chosen field attributable to the negligence of another. In cases involving wrongful termination, it would seem that the standard method for comparing pre-incident earning capacity with post-incident earning capacity would be essentially the same. As vocational rehabilitation experts, we consider two familiar issues: the “but for” scenario and the “offset” scenario. We must first establish what the plaintiff’s expected earnings, career path, and benefits would have been had the alleged wrongful termination not occurred. Next, it is important to offset or account for any potential diminution of earnings capacity given that the alleged wrongful termination did occur.
Whereas the same general methodology for addressing potential lost earnings is similar for wrongful termination, there are several important differences that can complicate the analysis. Regarding employability, for example, although circumstances vary among cases, the terminated worker typically does not have the benefit of a positive recommendation from their former employer, which can impact their post-termination job search. If the plaintiff had been a long-term employee of the previous employer, it can be awkward to explain to a potential new employer the circumstances surrounding their departure from the previous employer. This potential hindrance to alternate employment would be difficult to quantify. At times, the best available metric is the collection of job interviews the plaintiff has completed that have not resulted in an offer of employment.
Another challenge in estimating damages is assessing post-termination earning capacity because of the variability of occupations in which wrongful termination is alleged. The U.S. Bureau of Labor Statistics and state departments of labor collect regular wage data via the Occupational Employment Survey. However, what if insufficient data exist to adequately address specific occupations? And, what if the plaintiff’s occupation is too specific for the survey? This problem is often seen for sub-specialties of traditionally white-collar jobs. For example, it may be relatively straightforward to determine what the median earnings of an attorney are, but what about attorneys who specialize in bankruptcy, or civil rights litigation, or divorce? The variability within the occupation of attorney could in some cases be substantial. In these instances, it is often helpful to turn to professional or trade organizations who may routinely survey their members for earnings data. To get a sufficient sample size, it is likely that published survey results from national, as opposed to state-wide organizations, will be preferred.
Ultimately, the trier(s) of fact will have to determine if an employee was wrongfully terminated and what damages have been experienced, and vocational rehabilitation experts must provide information that has been collected under generally-accepted methodologies that accurately addresses monetary damages.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or medical cost projections experts 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Vocational and Rehabilitation Prognosis
A prognosis is the foretelling from signs and symptoms. Several categories of prognoses are used in an attempt to opine about the future vocational rehabilitation of evaluees. These categories are as follows:guarded; poor; fair; good; and excellent.
Some of the variables used in forecasting include: age and work-life expectancy; education and training; work experience; wages, skills and skill level or job classification; physical capacity and the attainment of maximum medical improvement; and physical demands of jobs. Other variables to consider include: motivation; vocational test scores; the evaluee’s goals and objectives; propensity to work; and internal or external locus of control. Additional variables include vocational and medical adjustment to impairment and the psychological state of the evaluee.
A “guarded” prognosis is when the person formulating the opinion simply does not have enough information to know or to foretell what the outcome may be. For example, suppose an evaluee has undergone a recent surgery and the recovery period has not been completed. This could lead to a guarded prognosis.
A “poor” prognosis suggests the evaluee has very few signs or symptoms that would indicate a high likelihood of attaining or maintaining gainful employment. Suppose the evaluee is of advanced age and has little education and significant physical limitations. This could lead to a poor prognosis.
A “fair” prognosis indicates that there are some signs and symptoms which indicate that the evaluee may likely be rehabilitated. Consider that the evaluee is 50 years old and has an 11th-grade education. Also, consider that the evaluee has light physical capacities with a work history that demonstrates they are capable of skilled labor. This scenario may lead to a fair prognosis.
A “good” prognosis is one in which an evaluee has many signs or symptoms that would lead the evaluator to believe that the evaluee could be rehabilitated. In this example imagine that the evaluee is 30 years old, has a high school diploma, completed vocational school and is certified as an instrument technician. Also, consider that the evaluee can lift 50 pounds occasionally and 25 pounds frequently. This opinion may be that the evaluee has a good prognosis.
An “excellent” prognosis is one in which the evaluee has many indicators that they would achieve successful rehabilitation. Oftentimes when providing an excellent prognosis opinion, the evaluee has achieved maximum medical improvement and is working, or the evaluee is a younger individual, has a high level of education or training, good work history, excellent skills, high vocational test scores, and minimal limitations. In this case, the evaluee may be able to return to work in the job they had at the time of injury.
A framework for opining about a prognosis can help to determine rehabilitation potential, and help stakeholders determine the likely outcomes in personal injury cases. Providing a prognosis for the vocational and rehabilitation potential of an injured worker is not an exact science but using an organized framework with identifiable and reliable qualitative categories can be helpful in identifying the evaluee’s likely vocational potential.
A knowledgeable and experienced vocational expert and life care planner engaged to evaluate your case needs will lead to appropriately assessing vocational prognosis and future medical care needs.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or medical cost projections experts 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Medical Cost Projections and Life Care Plans-Standards of Practice
The Standards of Practice holds all Certified Life Care Planners (CLCP) accountable for providing only the recommendations for care that fall within the life care planners specific practice area and directs that all life care planners avoid, whenever possible, generating a life care plan or medical cost projections in isolation, without consultation or collaboration with other relevant health care providers, or without having the foundation needed for including recommendations in a life care plan or medical cost projections.
Life care planning is a transdisciplinary specialty area of practice largely consisting of qualified rehabilitation professionals such as rehabilitation counselors, rehabilitation psychologists, case managers, nurses as well as physicians. Within the field of life care planning, there are published Standards of Practice for life care planners in which all Certified Life Care Planners (CLCP) must follow.
Accordingly, when developing a life care plan or medical cost analysis, the CLCP should perform a comprehensive assessment through the process of data collection and analysis involving multiple elements and sources which includes collecting data about medical, health, biopsychosocial, financial, educational and vocational status and needs. The life care planner should also obtain information from medical records, the evaluee/family when available or appropriate, as well as through collaborating with the relevant treating or consulting health care professionals and others.
A knowledgeable and experienced life care planner and vocational expert engaged to evaluate your case needs will lead to appropriately assessing future medical care needs and vocational prognosis.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts, life care plan or medical cost projections experts 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Case Review: Daubert Challenge of a Physician Life Care Plan
A recent federal court decision* for the Southern District of Illinois involved a motion to exclude the plaintiff’s expert physician life care planner based on a Daubert challenge which was granted. In this particular personal injury case, plaintiff hired a physiatrist to produce a life care plan based on “needs for treatment and medical services, as well as equipment necessary that he is reasonably certain to utilize in order to maximize his medical and rehabilitative potential” following the injury at issue.
The defense challenged the qualifications of the expert, his methodologies, and the reliability of his opinions. On the gatekeeping function regarding the reliability of methodology and reasoning, the court found that the methodology and reasoning applied, are not based on more than subjective belief and unsupported speculation. The defendant contended that the opinions were not grounded in a proper basis as the physiatrist relied on his own assessment of the patient to develop his life care plan and opinions related to future medical needs rather than assessments of his treating physicians. As a result, he failed to establish the reliability of his opinions.
The defendant also contended that the physiatrist did not speak with the patient’s treating physicians. Accordingly, he simply relied on his template to develop the plan without any indication as to the methods or basis for his additional treatment suggestions. Furthermore, his method was not subjected to peer review, as he did not prepare the initial report himself. He could not estimate how much of the plan he prepared and how much was prepared by his nurse practitioner. Additionally, he did not discuss the plan with the patient’s treating physicians to validate his recommended treatments. Another significant aspect challenged was that he did not offer a basis for his projections regarding the frequency of the patient’s future care, therefore, the costs and ipse dixit conclusion is not valid.
It was noted that opinion without foundation in the record has no probative value, and given that his opinions regarding future medical treatment have no foundation in the record, his methods prove unreliable. As a result, the court agreed that the proposed treatments and cost estimates in the life care plan are not scientifically reliable and therefore excluded the expert from testifying. The court also excluded the plaintiff’s forensic economist as “her testimony and opinions are based solely on the physiatrist and his nurse practitioner’s inadmissible life care plan”.
In summary, the court excluded the expert’s report based on speculation and unsupported conclusions.
*United States district court for the Southern District of Illinois, September 2017. Jordan Queen vs. W.L.C. d/b/a SNIPER TREESTANDS, case No 14-CV-519-DRH-SCW
To find out more about our methods or to discuss a potential case assignment, we offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or life care plan experts 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Life Care Plan Methodology, the Price is Right, or is it?
Estimating an evaluee’s likely future medical needs can often be a complex exercise with many potential gray areas. For example, how certain is the treating physician that the patient will absolutely require a given treatment? How long will the treatment last? What happens if the treatment is successful, or unsuccessful? Does the plan change? May future complications arise? Thankfully, as certified life care planners, we have generally accepted practice guidelines and a rich body of literature to guide us through some of these difficult conditions.
One area of life care planning or future medical costs deals with the appropriate price to incorporate into a plan. The most common method is to conduct a survey of medical providers, durable equipment distributors, pharmacies, surgery centers, etc, and ask for the “billed price” the patient would be expected to cover should they independently seek the services without the benefit of any discount. Data points should be collected from a range of sources (usually a minimum of three costs when appropriate and available). Our policy is to present the results of this cost research in a range to account for differences in the market. Offsets for discounts provided through contracted insurance pricing are inappropriate due to collateral sources limitations, and consideration for discounted pricing or other alternative methods are too speculative to reach the necessary legal standards. In addition, discounts are far too variable, subject to change or discontinuation to be considered reliable.
Some life care planners have espoused using published fee schedules to determine likely costs of future medical care. The Physician’s Fee Reference (PFR; Wasserman, 2018) is a popular resource cited by some life care planners. The PFR is a compendium of aggregated charges from a number of sources (third party payors, clearinghouses, practice management system vendors, billing services, universities, medical practices, hospitals, and the Centers for Medicare and Medicaid Services). The stated purpose of the PFR is to provide fee strategies for physicians to set and adjust fees. It contains listings of codes, descriptions, and fees at the 50th, 75th, and 90th percentiles.
Instead of independently surveying medical vendors in a patient’s geographical area, some life care planners cite the Usual, Customary, and Reasonable (UCR) fee. Although this may be more time efficient, we believe it provides an inaccurate assessment of likely actual future medical costs. Primarily, using the PFR as a proxy for a geographical cost survey is inconsistent with its stated purpose of helping to set physician fees. Secondly, by reporting only the 50th percentile and higher costs, the PFR leaves out the lower half of the cost estimates, which artificially skews the pricing. Additionally, geographical specificity within the PFR is determined by using geographic multipliers which are derived in part from the Medicare Physician’s Fee Schedule. Even the PFR’s publishers describe the geographic multipliers as “imprecise,” yet claim they are the best available measurement of relative differences between geographical areas.
At Stokes & Associates we take great care to ensure that we are using best practices when it comes to our assessment methodologies, and for that reason, we advocate against relying on published fee schedules for general life care planning. Using published fee schedules does not give the complete picture and therefore distorts the information presented to the trier of fact, rending the information invalid and unreliable. There are of course exceptions to every rule.
To find out more about our methods or to discuss a potential case assignment, we offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or life care plan experts 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Estimating Future Wage Earning Capacity
An article appearing in the Journal of Forensic Vocational Analysis, Vol. 17, 1. Summer 2017, by Beverage & Durant, critiques the American Community Survey to determine if it is a valid instrument to estimate future earning capacity. The authors note that it has been found from longitudinal research on the American Community Survey (ACS), Current Population Survey (CPS), and the Survey of Income Program Participation (SIPP) that census-measured disability is largely transitory. They note that several economic researchers have posited that any work-life expectancy model, which assumes that census-disability measures are permanent conditions is empirically invalid. The authors further note that the findings in this current study empirically confirm the longstanding objections to the use of census data as a valid instrument to estimate future earning capacity. They further note that the ACS is highly subjective and can be completed by someone else other than the individual in question. The authors note that furthermore, the responses to the questions are based on the individual’s opinions and not on medical evidence, thus reliability and validity of the survey is extremely questionable.
A criticism of the use of the ACS by the authors is that the federal government did not create the ACS to be utilized in the individual (N = 1) context; rather, it was designed to be used for macroeconomic policy decisions. The authors note that there is not sufficient evidence to demonstrate that the data from the ACS provides accurate estimates of future earning capacity or employability for an individual. The authors note that the problem of utilizing a macroeconomic survey was that it was not designed for the individual context for making assumptions about the disability status, individual treatment goals, vocational rehabilitation outcomes, and future earning capacity. The authors note that the ACS alone is unable to take individual differences into account that research clearly indicates play a significant role, such as parental educational attainment, medical history, and individual physical or psychological limitations. The authors note that for these reasons, conclusions about an individual’s future earning capacity losses due to disability cannot be solely based upon the census data or upon the ACS.
The authors conclude that the measurement of the impact of disability on an individual’s future earning capacity is a complex matter. They further conclude that the available peer-viewed research and the Bureau of Census are quite clear that the American Community Survey was not designed for, and is not a valid instrument for measuring employment and future earnings for disabled individuals. They further note that only when the specific conditions of an individual are evaluated at the micro level, (i.e. education attainment, familial history, intelligence and personality, testing data, medical and psychological evidence) can the degree of disability and other confounding variables be properly accounted for in a vocational evaluation. They note that until an evaluation is completed, utilizing government sources of disability reporting will not be reliable and valid as the foundation for measuring the future earning capacity. Therefore, work-life expectancy for specific individuals cannot be determined for the same reasons.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or life care plan experts 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Determining Wage Earning Capacity with Limited or No Work History
Determining loss of earning capacity for an individual with limited or no work history often involves considering various scenarios and determining what is more probable and reasonable given the particular context. More often than not, these cases involve younger individuals who have not developed a strong work history.
As an example of how our vocational experts handle situations like this, consider the case of John Jones, who at 18-years old required a below-the-knee amputation. Mr. Jones was fitted for a custom prosthetic and is permanently restricted to sedentary to light activities, with a maximum lifting ability of 35 pounds.
Since Mr. Jones was injured before he had an opportunity to establish a career path, his vocational profile is developed based upon his physical restrictions, sedentary to light activities, and the results of his vocational testing, which indicated average achievement in reading and below average achievement in math.
Without historically documented earnings to arrive at his pre-injury earning capacity scenarios are considered based on his age, family history, educational level, academic functioning, functional limitations, and his interests and goals for the future.
Strategy 1: Socio-Economic Status - Based on the educational levels and professional accomplishments of Mr. Jones’s family members. In this scenario, it is also important to consider the likelihood of advancement in an individual’s career, particularly given Mr. Jones’s young age.
Strategy 2: Potential for Intermediate Education - Based on Mr. Jones’s short-term educational and vocational goals.
Strategy 3: Potential for Advanced Education - Based on Mr. Jones’s long-term educational and vocational goals.
Strategy 4: Direct Job Access - Based on Mr. Jones’s demographic characteristics and geographic area.
Mr. Jones’s post-injury earning capacity is dependent on a) his ability to complete his Associate’s degree and those corresponding earnings; b) if not able to complete his degree, he will compete for employment with other individuals with a high school diploma and no work experience and such earnings.
Finally, we determine the loss of earning capacity Mr. Jones has experienced as a result of the injuries he sustained. In Mr. Jones’s case, the loss of earning capacity is dependent on educational attainment. After we complete the vocational analysis, the earnings data can be supplied to an economist who calculates the expected loss of earnings capacity over the individual’s work life expectancy.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational experts or life care plan experts at Stokes & Associates, Inc. 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
How do Vocational Experts Work with Economic Analysts?
Forensic vocational assessments often require collaboration between vocational experts, forensic economists or forensic accountants. As the economic expert’s opinions largely rely on the vocational opinions generated by the vocational expert, it is crucial that both professionals recognize the interdependence of their work products in litigated cases. The following are examples of economic and vocational experts interface:
The vocational expert provides:
Opinions regarding suitable post-injury jobs based on the medical, demographic, and test data that shape the worker’s vocational profile;
Pre and Post injury earnings associated with suitable occupations as a basis for future earning capacity of the worker;
A detailed estimate of a person’s future medical needs through life expectancy when presenting a life care plan or medical cost analysis.
The economist provides:
A base estimate of pre and post wage-earning capacity;
Inflation of the real value of money over time and appropriate discount to present value;
Valuation of economic loss related to earning capacity;
Inflation indices for medical care, treatment, supplies and services for life care planning;
Valuation of the cost of medical care over lifetime;
Life Expectancy (based on published data);
Value of fringe benefits, per diem, expenses, and travel.
Economists and vocational experts work in tandem to develop an estimate of economic loss based on generally accepted foundational methods.
To ensure an efficient and accurate analysis of economic damages and values of future medical care, always discuss your expectations with both your economic and vocational experts. Additionally, it is often advisable to encourage direct communication between experts to ensure that all relevant referral questions are answered as completely as possible.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Defining Work History Through Deposition Questions
When conducting a vocational rehabilitation assessment of an injured worker, it is important to first construct a pre-injury vocational profile. The pre-injury profile includes the client’s education, work history, vocational interests, and likely professional trajectory. In instances where an interview with the client is not possible, we often rely on information collected during depositions to construct both the pre-injury and post-injury vocational profiles to determine residual earning capacity. Below are some basic helpful questions to ask the plaintiff during a deposition:
What was your job title and who employed you? This is important for us to know in cross-referencing Department of Labor classifications of jobs to conduct wage research. Obtaining the full LEGAL name of the employer is also helpful if we need to request personnel or employment records.
What were your job duties? Just because we have a job title, does not mean we necessarily know what the daily job duties were. Additionally, the same job can be known by a variety of job titles. It is important to ask about key issues like: “How much did you have to lift/push/pull daily? Was help available when you had to lift heavy objects? What tools did you use? Did you operate machinery? To whom did you report? Did you need to use a computer? Did you use specialized software?”
What were your dates of employment? It is important to know how long an individual generally stayed at jobs to gauge likely performance, interest and plans to continue working in a desired field. Red flags arise if there are gaps in employment, or if some individual jumps from job to job.
How were you compensated? Earnings history is used to demonstrate likely earnings trends and helps determine pre-injury earning capacity. For example, if the individual earned less than the state statistical average for their job, they may have been underemployed. If they demonstrated earnings in line with statistical averages, then a reasonable assumption can be made that they could follow the documented earnings trajectories demonstrated by higher percentile wages. For business owners, it is important to ask about expenses they ran through their business, and the costs they could expect to incur should they be forced to hire someone to replace the services they can no longer perform.
What was your reason for leaving a job? This helps us understand how the individual makes decisions about employment and helps us to know about potential barriers to employment. For example, leaving a job because of continued conflict with a supervisor is very different from leaving a job to accept an offer of higher pay from a competitor.
We offer complimentary consultations concerning "hypothetical matters."
To learn more about important issues associated with determining pre and post-injury earning capacity or to strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
To Compel or Not to Compel: When it Comes to Life Care Plans, that is the Question
Under the Louisiana Code of Civil Procedure, Art. 1464, Order for an additional medical opinion for physical or mental examination of persons states:
A. When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to an additional medical opinion regarding physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an additional medical opinion regarding an examination by a vocational rehabilitation expert or a licensed clinical psychologist who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
B. Regardless of the number of defendants, a plaintiff shall not be ordered to submit to multiple examinations by multiple physicians within the same field of specialty for the same injury except for good cause shown.
C. A minor subject to examination under the provisions of this Article shall have the right to have a parent, tutor, or legal guardian present during the examination. (additional language in the Code has been eliminated due to not being relevant to this article)
It is well established that the Vocational Rehabilitation evaluation is subject to this article, which outlines specific guidance for compelling a vocational rehabilitation examination. The article ignores the issue of compelling a Life Care Plan examination. This exact circumstance arises when the defense is seeking a Life Care Plan examination to refute the plaintiff’s Life Care Plan and this request is denied by plaintiff’s counsel. Based on the language and spirit of the law, it should logically follow for the defense to have an opportunity to examine the plaintiff by an expert of their choosing. The law clearly outlined Vocational Rehabilitation experts and clinical psychologists, yet ignores a fairly new area of specialization, the Life Care Planner. Although the law does not specifically state that one can compel a Life Care Plan examination, it does address the need when it states: “When the mental or physical condition of a party, or of a person…, is in controversy, the court in which the action is pending may order the party to submit to an additional medical opinion regarding physical or mental examination”.
When this article was last amended, Life Care Planning was not so prevalent. Since Life Care Plans have gained wide acceptance in both state and federal jurisdictions, it would seem logical that the courts would consider compelling of Life Care Plan examinations when appropriate. When the condition of a party, including future medical care and the costs associated with such care, is in question, a Life Care Plan evaluation and report can provide the trier(s) of fact with significant guidance.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or emaildbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
Life Care Planning and Burn Injuries
When evaluating the future treatment needs of an individual who has experienced a burn injury, there are several factors to consider. The treatment course for burn injuries will depend on the mechanism of burn, the depth of the burn, and the amount of the body surface area involved.
Early intervention with appropriate treatment of the burn injury is necessary to avoid complications. Complications could lead to increased medical costs due to the prolonged need for treatment. Complications can include infection, contractures, and hypertrophic banding. After maturation of the scar, even with appropriate initial treatment, additional surgical procedures and rehabilitation may be necessary. Psychological evaluation and treatment may also be needed.
Burn injuries can be caused by exposure to heat, cold, chemicals, electricity, friction or radiation. Depending on the mechanism of burn, there could also be internal injuries such as pulmonary damage due to injury caused by inhalation or destruction of deeper tissues requiring amputation of affected limbs. The tissue most often affected by burn injuries is the skin. Damage to the skin could impact the ability of the body to maintain fluids, regulate body temperature and prevent infection.
Burn injuries are evaluated by the degree or severity of the burn.
First degree (superficial burns) the outer layer of skin is damaged causing inflammation or redness.
Second degree (partial thickness burns) disturbs the first two layers of skin.
Third degree (full thickness burns) extends to the deepest layer of skin.
Fourth degree (deep full thickness burns) extend through the skin to underlying tissues, muscles, ligaments, and bones.
The total burn surface or total body surface area is another significant factor to evaluate. For instance, regarding the initial treatments of a burn injury, skin grafts may need to be performed in stages if there is not enough healthy tissue to perform the graft in one procedure. The total body surface of a burn is classified as minor, moderate or major, depending on the percentage of total body surface area involved.
If a significant amount of the total body surface is affected and if the burn has damaged the sweat glands (occurs at the partial thickness burn level), the individual will have to avoid exposure to hot or humid conditions. This could impact their ability to work in their usual occupation or partake in outdoor activities, especially in hot or humid weather conditions. Depending on the nature of the burn and the physical implications, alternate work situations may need to be explored to mitigate damages related to loss of earning capacity.
A knowledgeable and experienced life care planner and vocational expert engaged to evaluate your case needs will lead to appropriately assessing future care needs and vocational prognosis.
*Weed, R.O. (2009). Forensic issues for life care planners. In Weed, R.O., & Berens, D. E. (3rd Ed.), Life Care Planning and Case Management Handbook (pp. 741-760). Boca Raton, FL: CRC Press.
We offer complimentary consultations concerning "hypothetical matters."
To strategize with one of our vocational or life care plan experts at Stokes & Associates, Inc. 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, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP