Vocational Analysis Testing - Interest Inventories

When performing a vocational analysis, the vocational expert relies on multiple pieces of data to formulate vocational opinions. In addition to obtaining a detailed medical and work history, it is important to consider the evaluee’s preferences for work, especially when alternative employment is necessary due to permanent physical restrictions. To measure preferences, vocational experts may rely on vocational testing, which typically includes interest inventories. Most interest inventories are based on John L. Holland’s theory that vocational and career choices are linked to the persons’ personality type, which influences interests.
 
Holland identifies six interest/personality areas:
 
Realistic - Realistic personality types prefer to work with things and are considered doers versus talkers or thinkers. Realistic persons tend to be competitive, assertive, independent, and practical. 
 
Investigative - Investigative personality types prefer working with data, are considered thinkers, and tend to be intellectual, analytical, and observational.
 
Artistic - Artistic personality types like to work with things and ideas and are considered creators. Artistic persons are typically sensitive, inventive, creative, and emotional.
 
Social - Social personality types prefer to work with people and are considered helpers. They usually seek out relationships, are humanistic, responsible, and supportive.
 
Enterprising - Enterprising personality types are considered persuaders and like to work with people and data. For these individuals, the value is usually placed on money, reputation, and power.
 
Conventional - Conventional personality types prefer to work with data and are considered organizers. Conventional persons tend to be quiet, responsible, and well-organized.
 
The results of the interest inventories allow the vocational experts, not only to have insight into what type of career the evaluee would be interested in pursuing but also allows the expert to make inferences about the person’s personality features. These personality features can provide the vocational expert with information about how the person might approach the job search or present in an interview. Ultimately, interest inventories can assist in providing useful information related to a person’s vocational outlook.
 
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

David Barrett – Client Development – Vocational Rehab Experts and Life Care Plan Experts

When are jobs deemed available during vocational rehabilitation?

When providing vocational counseling services on worker’s compensation cases, our role is to assist the injured worker with a focus on job placement.  Any jobs developed on behalf of the injured worker in their geographic area must be open and available. So, what is the definition of “available?”

Most Louisiana worker’s compensation courts agree that to demonstrate that a job is available within an employee’s physical capabilities, the treating physician must approve the job.

A conflict exists among appellate courts however, as to whether a job may be considered available to the employee before the physician approves the job.
In Banks, Jr. v. Industrial Roofing & Sheet Metal Works, Inc. (No. 96-C-2840, 07/01/97), one of the issues involved the timeliness of when jobs were identified by the vocational counselor as open and available and when they were presented to Banks. In determining job availability, will the court consider jobs that are available when the employee is notified of their existence or when the physician approves them? 

The 3rd Circuit, requires that the vocational counselor identify available jobs, obtain physician approval of those jobs, confirm that the jobs are still available when approved by the physician, and then notify the injured employee of the jobs (East-Garrett v. Greyhound Bus Lines, 99-421 (La. App. 3 Cir. 11/3/99), 746 So.2d 715.  The court explained its reasoning as follows: We find it implicit in the holding of Banks that the employer must establish that the jobs are still in existence when it is determined that they are within the employee’s capabilities.

In Davis v. Cippriani’s Italian Restaurant, , the 1st Circuit Court of Appeal upheld the trial court’s finding that vocational services provided to the employee were inadequate to show that the employee had wage earning capacity because “[t]he counselor was unable to show that the opportunities were still open at the time claimant’s treating physician signed-off on them.”

In Payne v. Lawn Lourd Lawn Service, the 2nd Circuit rejected the argument that an employer must obtain physician approval before notifying an employee of a job. The court found no requirement in the Banks decision for prior physician approval of jobs.

Although there is some disagreement by the courts as to whether a job may be considered available to the employee before the physician approves the job, it would seem that all the courts would agree that the treating physician’s opinion should be sought. Our practice is to provide the injured worker with job openings when they are identified while simultaneously sending the job descriptions to the treating physician for review and approval.  When approved, the employers are re-contacted to determine the status, and the injured worker is notified immediately with the results. Ultimately, it is up to the courts to rule when a job is considered available.

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

How does the new Hospital Chargemaster Rule Influence Life Care Planning?

As part of the Affordable Care Act, hospitals have been required to make public the prices they charge for their services. This provision of the ACA has not been enforced until a new rule by the Centers for Medicare and Medicaid Services took effect on January 1, 2019. The rule cited that hospitals would comply “as long as the information represents the hospital’s current standard charges as reflected on its chargemaster.” A hospital’s chargemaster is a summary of charges and services, which traditionally has been proprietary in nature. The “price” hospitals charge for treatment is many times a moving target. For example, the hospital’s published price is intended to appear competitively set but is neither the price eventually charged to consumers or to insurance companies. A recent Health Affairs study found that the average hospital with greater than 50 beds had a charge-to-cost ratio of 4.32, meaning that the hospital charged $432 when services actually cost $100. Furthermore, on average, hospitals charged 20 times more than their own costs for CT scans and anesthesiology, because it has been traditionally more difficult for patients to compare prices in these departments.
 
So, how does this new rule affect cost research for life care plans? Well, it's complicated. To comply with the letter of the law, hospitals must make their chargemasters public. The problem is, that most chargemasters are excel spreadsheets of largely unintelligible internal codes and cryptic abbreviations.  To see how local hospitals were handling the transition, we did a survey of facilities in the New Orleans area.
 
We researched 10 major hospitals in the New Orleans area and searched their websites for the mention of public pricing information. Nine of the 10 hospitals had price lists available for review. Of those nine, all had downloadable Excel or CSV files. Finding the appropriate links was similarly challenging with all nine websites, with text-based hyperlinks found buried on “Patient and Visitors” sub-pages. None of the links on the nine sites were made available in sitemaps or searches for “pricing,” “chargemaster,” or another similar language, and none were highlighted on the hospital’s homepage.
 
There was some variability within the nine websites regarding the way information was displayed. Four of the nine sites listed a Current Procedure Terminology (CPT) code. The CPT code is the key piece of information necessary in doing cost research for life care plans as it is a universal identifier for the exact type of service. Most of the websites included text descriptions of the services being priced with a corresponding dollar amount. One site included an easy to follow chart of typical prices displayed in a range, and searchable by inpatient and outpatient services. However, these searchable charts did not seem to represent an exhaustive list of treatments/supplies.
 
Overall, publishing hospital pricing online is a good step in the right direction toward true pricing transparency. Our basic survey of hospital websites was in no way a definitive or controlled experiment, but initial results suggest variability in the way hospitals are “complying” with CMS’s new rule. In their defense, the new policy has only been in effect for less than one month, and hopefully, large health care systems will recognize the benefit of transparent pricing and continue improving their cost reporting. For more information on hospital pricing or other cost research related to life care plans, contact Stokes & Associates today.

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, MHS, CRC, LPC, LRC, CLCP 
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP

Determining the Loss of Earning Capacity in Pediatric or Young Adult Cases

This is a review of an article published in the Journal of Forensic Vocational Analysis, Vol. 18, No. 1, Summer 2018, by the American Board of Vocational Experts.
 
In this article, Terry Leslie, M.Ed., CRC, LPC, ABVE/D, a vocational and life care planning consultant, proposes a framework to guide vocational experts in determining loss of earning capacity in pediatric and young adult cases.  Leslie suggests that the focus be on the “Sphere of Influence” instead of family or parents only, as these traditional relationships appear not to be as prevalent as they may have been in the past.  The “Sphere of Influence” covers three general areas, including genetics, socio‑economic status, and the characteristics of the child themselves.
 
There are several medical conditions that may have genetic causes and need to be considered in determining the pre‑morbid level of functioning of a child compared to their post-morbid level of functioning.  Such conditions include autism spectrum disorder; attention-deficit/hyperactivity disorder (ADHD); oppositional defiant disorder (ODD), specific learning disorders such as reading disability; and traits such as Tourette’s disorder, bipolar disorder, and cystic fibrosis as examples.
 
Regarding socio-economic status, individuals who have an influence on the child may include parents, grandparents, siblings, etc. Characteristics such as educational attainment, academic achievement, school absences, grade level functioning, as well as earnings records or criminal records can be helpful to the analysis. The author quotes the American Psychological Association Education and Socio-economic Status Factsheet which states that socio-economic status is often measured as a combination of education, income, and occupation. Leslie adds that a strong positive association between one’s school attainment and that of one’s parents has been consistently documented in numerous studies.
 
Regarding characteristics of the child/young adult that can affect the analysis may include work-life expectancy, education/academic skills development and attainment and test/evaluation scores; medical/psychological opinions and limitations; interests; residency; criminal or drug record; and skills developed by the child. Additionally, any medical or other conditions which are not related to the litigation and their effect on wage-earning capacity must be considered.
 
Assessing the loss of earning capacity requires special care. At Stokes & Associates, we refer to published, generally accepted methods similar to those outlined by Leslie to guide our assessments of individuals who for whatever reason have poorly defined work history or vocational trajectories.

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, MHS, CRC, LPC, LRC, CLCP 
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP

What are the Standards of Practice for Life Care Planners?

As certified life care planners, we must adhere to generally accepted ethical and practice standards that guide our professional forensic work. The Standards of Practice for Life Care Planners (IARP, 2005) is the most recently published resource intended to define the core knowledge, skills, and behaviors that life care planners should use in the course of work. In generating these Standards, a group of experienced life care planners took more than two years to review existing consensus statements (from 2006, 2008, 2010, and 2012), completed a role and function study, surveyed professionals in the field, and reviewed other existing professional standards of practice from related fields to arrive at a comprehensive set of guidelines for competent practice. The Standards are generally broken down into core areas including credentials, measurement, and dissemination of core, measurement, and validation of work product, professional self-determination, and early and ongoing development sources. The document is separated into Standards of Performance and Standards of Practice.
 
Standards of Performance relate to the readiness of an individual to work ethically and competently as a life care planner. Issues such as having the proper educational background, maintaining the appropriate licensures, participating in continuing education, and adherence to professional ethics are stressed. These Standards of Performance spell out the minimum professional requirements for life care planners, yet do not provide specific information regarding the technical practice of producing a plan.
 
In contrast, The Standards of Practice give clear guidance regarding the generally accepted methods for evaluating an individual and disseminating professional life care planning opinions in written format. They include:
 

1. Remaining within the professional scope of practice

2. LCP must have skill and knowledge in understanding health care needs in the plan

3. Performs a comprehensive assessment (multiple sources, systematic manner)

4. LCP uses a consistent, valid, and reliable approach to research, data collection, etc.

5. LCP Analyzes the data (assess the need for further evaluation or opinions)

6. LCP uses a planning process (organizing data, a method of inclusion/exclusion of services)

7. Seeks collaboration when possible (physician conferences, other treatment team members)

8. Facilitates understanding of the LCP process (maintains objectivity)

9. LCP Evaluates (review and revise the LCP, follow-up consultation)

10. May engage in forensic applications (adheres to legal rules and recommendations)

 
There are many important components of life care planning that flow directly from these Standards. For example:

• Using non-discounted, market rate prices that are geographically specific when appropriate (Standards 4, 6)

• Relying on all medical information and opinions to form life care plan recommendations (Standards 1, 2, 3)

• Providing updated life care plans as the needs of the individual change (Standard 9)

• Requesting and participating in physician conferences to obtain clear and concise medical recommendations (Standard 7).

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, MHS, CRC, LPC, LRC, CLCP 
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP

Is Language Always a Barrier?

When conducting vocational evaluations, limited education, significant physical and/or cognitive restrictions, and remote labor market areas can complicate efforts to identify an evaluee’s future vocational potential.  Another common challenge is coping with a “language barrier" of the person we are evaluating. This may include individuals who speak only their native language or have very limited knowledge of English.  By communicating with the referral source, we can determine prior to our assessment if an interpreter is required to conduct the evaluation. It is preferable to engage an independent, certified interpreter to attend the evaluation.
 
We often learn that a person who says that they speak “no English” actually understands and communicates in English at some level, which is important in assessing whether language skills will affect the person's vocational future.
 
Here are questions we generally consider when assessing vocational factors when there is a language barrier:
 

• How long has the individual lived in the United States if employed at the time of injury?

• How were they able to communicate on the job?

• What level of language is required for certain employment?

• What is their current level of speaking and writing in the English language?

• Has evaluee taken any classes such as English as a second language?

• What resources are available to help them learn English as a second language?

 
Using answers to these key questions we can conduct labor market research to identify suitable jobs that can accommodate language issues.  For example, job sites that employ same-language coworkers or supervisors are often good fits for workers with limited English. Additionally, the individual may be able to communicate enough in English to obtain and maintain employment. Similarly, many major metropolitan areas have communities that are ethnically diverse and have opportunities for supportive services and employment. Although language barriers do exist with some individuals we evaluate, conducting a thorough vocational assessment along with aggressive labor market research will determine what effect, if any, the language barrier has on the individual’s employability and wage earning capacity.
 
We offer complimentary consultations concerning "hypothetical matters."  To strategize 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 

Incorporating Telehealth into Modern Vocational Rehab and Life Care Planning

According to the American Telemedicine Association (2013), “telemedicine” or “telehealth” is the use of medical information exchanged from one site to another via electronic communications to improve a patient’s clinical health status. As vocational rehabilitation and life care plan experts, we do not offer medical treatment or opinions, however, we can leverage improving technologies developed in healthcare to reduce the cost and inconvenience to those we evaluate.  For example, U.S. Department of Veterans Affairs has been an early adopter of telemedicine, and in 2013 alone, the VA treated more than 600,000 veterans for a total of 1.7 million episodes of care. Furthermore, video conferencing technology has been used in the United States state and federal courts for decades to accommodate logistical challenges associated with transporting incarcerated defendants to court for sworn testimony.  However perhaps the most important development in legitimizing videoconferencing for the delivery of clinical services occurred when the Centers for Medicare and Medicaid services began reimbursing clinicians for services delivered via telemedicine in the early 2000s.
 
Members of Stokes & Associates have been using remote video conferencing solutions to perform clinical evaluations since 2010. We have likewise offered testimony accepted in court based on interviews conducted via video conferencing. Due to the nature of our professional methodology, we are able to collect the important information from some evaluees via video conferencing when in-person interviews are not possible. Several empirical studies confirm that patients and providers are generally satisfied with video conferencing (Modai, et al., 2006), and have shown high levels of user satisfaction and acceptance across diverse clinical populations (Richardson, et al., 2009).
 
Many of the largest healthcare-related professional organizations such as the American Medical Association, American Psychological Association, and American Psychiatric Association have adopted formal guidelines or position papers regarding the proper use of these video conferencing services. There are no formal positions articulated by the vocational and life care planning credentialing bodies or professional organizations, suggesting that development in technology is moving faster than policymakers.
 
Stokes & Associates has the capability to perform remote vocational and life care planning evaluations in certain instances over a HIPAA-secure, web-based private network. Please contact our office to learn more about how video conferencing and telehealth methods can reduce the costs of engaging our experts.
 
 
References:
American Telemedicine Association. (2013). Practice guidelines for videoconferencing-based online health services. Retrieved from http://www.americantelemed.org/practice/standarts/ata-standards-guidelines

Modai, I., Jabarin, M., Kurs, R., Barak, P., Hanan, I., & Kitalin, L. (2006). Cost effectiveness, safety, and satisfaction with video telepsychiatry versus face-to-face care in ambulatory settings. Telemedicine and e-Health, 12, 515-520.

Richardson, L.K., Frueh, B.C., Grubaugh, A.L., Egede, L., & Elhai, J.D. (2009). Current
directions in videoconferencing tele-mental health research. Clinical Psychology:        Science and Practice, 16,  323-338.
 
We offer complimentary consultations concerning "hypothetical matters."  To strategize 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 Rehab Expert Opinion and Apportionment

A recent article in the Journal of Forensic Vocational Analysis (Van de Bittner, 2016)*, addresses a method for analyzing specific factors complicating wage earning capacity assessment after an accident or injury.  Issues such as a pre-existing condition, subsequent injury, or other medical (physical or mental limitations) or vocational factors (illiteracy, limited education, training or skills, language barriers, felony convictions, geographic area, incentives) often complicate the assessment of future earning capacity. 

Apportionment is the process of assigning a percentage to complicating factors that represents the degree to which each factor impacts future earnings.  Apportionment can apply to plaintiffs in various venues such as worker’s compensation, in both state and federal systems, liability cases, medical malpractice, and any venue relating to personal injury and compensation. Van de Bittner’s article is specific to the California Worker’s Compensation System, however the issues are applicable to cases in other regions as well.

In simple terms, apportionment should be based on causation. If a condition exists pre-injury, or if there is a subsequent injury or medical or vocational factor, the Vocational Evaluator (VE) should assess the amount of loss of wage earning capacity both pre and post, outlining that portion that would be attributable to each scenarios to arrive at an accurate opinion.

Typically, mental or physical impairments are determined by a physician or other health professional.  It is imperative that the plaintiff disclose any previous physical or mental impairments or other medical or vocational factors that could impact wage earning capacity.  This information should be clearly documented in the vocational evaluation. The defendant is only liable for the loss of wage earning capacity or impairment caused by the current indexed injury.  In the case of a plaintiff having been determined to be 100% disabled previously, no further disability can be found.

Physicians often are asked to provide a percentage of impairment according to the AMA Guides, however these percentages do not translate into loss of wage earning capacity or specific work restrictions.  Physicians should be consulted regarding limitations assigned both pre and post the indexed injury.

Van de Bittner (2015) outlines the following process to assist the VE in developing opinions:

• Request, obtain and review any medical, psychiatric, employment and related records and opinions regarding apportionment that will likely be relied upon by the court.

• Interview the plaintiff regarding current, prior and any subsequent conditions and vocational factors and their impact on employability and wage earning capacity.

• Conduct a transferable skills analysis to delineate the loss of employability and wage earning capacity related to any prior medical/vocational factors compared to any losses related to any current medical and vocational factors.

•  Pre-injury employability and wage earning capacity is then compared with post injury employability and wage earning capacity to determine any differences.

With this process, the VE should have a clear picture of pre and post employability and wage earning capacity.

*Van de Bittner, E. E. (2016). Vocational apportionment: An analysis of medical and vocational factors affecting apportionment of employability and earning capacity, Journal of Forensic Vocational Analysis,  16(1).  
 
We offer complimentary consultations concerning "hypothetical matters."  To strategize 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 Assessments: Best Case Scenario, Appreciate the Value of an Established Work History

Evaluating rehabilitation potential, employability, wage earning capacity and expected earnings following an injury is complex and requires a thorough, step-wise approach. An initial vocational interview provides rich information including: the interviewee’s educational attainment, vocational training, work history, work pattern, earnings history, reported physical limitations, vocational interests and knowledge about searching jobs, transferable skills, as well as values and motivation for work. When appropriate, vocational testing offers normative information regarding an individual’s ability to perform in certain jobs or work environments. Finally, a review of medical documentation and other records such as functional capacity evaluations, depositions, earnings records, and employment records provides the contextual information to make final assessments regarding pre-vs post-injury rehabilitation potential, employability, wage earning capacity and expected earnings.

As is the case in many behavioral sciences, past behavior is often the best predictor of future outcomes. With the many variables that can impact likely vocational performance, having a “vocational track record” can be an evaluator’s most reliable guidepost. An established work history and/or work pattern clarifies vocational opinions as an established history of earnings is a strong predictor of future vocational performance. The work history is an important component of the multi-factorial approach to predicting future worker behavior. If it is determined that the individual is unable to return to the work held at the time of injury, a transferable skills analysis ultimately assists in determining the types of jobs available to the individual post-injury. When considering all of the factors during the assessment process, the work history is a key component in establishing the foundation needed to determine the worker’s rehabilitation potential, employability, earning capacity and expected earnings post-injury.

We offer complimentary consultations concerning "hypothetical matters." To strategize 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

Snapshot of Vocational Analysis for Mediation (PVA)

The Preliminary Vocational Analysis or PVA is a useful way to arrive at a basic conceptualization of a plaintiff’s vocational prognosis and likely residual earning capacity. In consulting on litigated cases, it is critical that we adhere to our standard method for arriving at opinions regarding vocational outlook. The typical forensic assessment includes a review of medical records, interview with the evaluee, vocational testing, research, and generation of a comprehensive vocational assessment report. However, in cases where a matter may ultimately settle or pass through the mediation process, a less comprehensive approach can assist attorneys in arriving at a reasonable estimate of a plaintiff’s future lost wages for negotiation purposes.

The PVA is a limited assignment (usually 10 hours of time) which can be used to identify occupations and wages, given the evaluee’s location, age, education, training, work history, assigned or assumed physical limitations, and wage ranges. The plaintiff is not interviewed as part of the PVA, therefore it should not be used as a substitute for a vocational assessment should the case go to trial. Our experts will not testify to the results of the PVA in lieu of a full vocational assessment. If mediation or settlement efforts fail, we generally prefer to conduct the comprehensive vocational assessment which usually requires an interview of the plaintiff and if necessary labor market research. When a PVA is converted to a full vocational assessment, hours billed to the PVA are credited to the final report, making this transition cost effective.

We offer complimentary consultations concerning "hypothetical matters". To strategize 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 Planning and The Affordable Care Act (Obamacare)

Given the publicity over the past year or so, Stokes & Associates has been asked questions regarding how the ACA might affect life care planning in the future. Specifically, we have been asked to address the cost of healthcare insurance under the ACA with regard to the maximum out-of-pocket health care expense as a function of total medical costs related to injuries.

The most obvious issues in analyzing the ACA relate to how collateral source rules might apply and what services are actually covered under the ACA. For example, will juries be told that under the ACA the plaintiff has coverage with maximum out of pocket costs of $6,350 per year? Can an offset be taken for the cost of premiums since everyone is mandated to have or buy coverage? Are the fees paid by the carriers considered collateral sources and the defendant is still responsible for 100% of the future medical costs? Can a life care plan merely list the maximum out of pocket cost, premium amounts for health care coverage, and the costs of those services not provided for under the ACA? Will mandated coverage be treated the same as structured settlements and annuities?

To begin discussion of these questions, some background information may be helpful. Life care plans are used in personal injury litigation to determine the future medical care costs to an injured party. The costs must be related to the injury in question, be of medical necessity on a more probable than not basis, and be specific in service, supplies, equipment, frequency and duration in order to be reliable enough to include in the plan. By including only items or services that meet these criteria, the life care planner can eliminate unnecessary legal challenges to the validity and admissibility of the plan.

Generally accepted life care planning methods suggest that the plaintiff will pay for the items at consumer price levels (“cash pay price”) as opposed to basing future costs on collateral sources such as public programs or private insurance. Since the implementation of the ACA on January 1st. 2014, insurance coverage is widely available and the carriers are not allowed to discriminate for pre-existing conditions. This is known as the “guaranteed issue” provision. The ACA also prohibits lifetime or annual dollar limits for essential health benefits and the insurance coverage must be available and renewable. The law also provides that individuals will pay the same premiums as any other person of the same age and geographic location. Therefore, with regard to the ACA, juries may be presented evidence that insurance will cover the plaintiff’s future medical expenses.

The ACA provides for:

• Essential health coverage for hospitalization and ambulatory care services

• Emergency services • Mental health and substance use disorder services

• Prescription drugs

• Laboratory services

• Preventive and wellness services and chronic disease management

• Pediatric services including oral and vision care

• Rehabilitative and habilitative services and devices including prosthetics, wheelchairs

• Physical and occupational therapy. Physical and occupational therapy are often capped by health insurance plans, limiting future services recommended for plaintiffs.

The ACA does NOT cover:

• Long term care

• Nursing care and home care.

These excluded services can make up a substantial portion of the costs included in a life care plan.

So what do we think will happen? It is probable that attorneys representing plaintiffs will consider the ACA a collateral source, arguing it should not be presented to the jury as a reasonable form of future medical compensation. This strategy would imply that the defendant would be wholly responsible for future medical care costs identified in a life care plan. Even if the courts admit information about the ACA, plaintiffs are likely to present the evidence of the future costs that are not covered under the ACA. Plaintiffs may likely argue that the ACA is subject to repeal and thereby insufficient as a permanent and stable payment source. Additionally, repeal of the ACA may lead to plaintiffs seeking relief under public insurance programs such as Medicare or Medicaid to pay for services, shifting the burden from the defendant to the taxpayers.

Attorneys representing defendants have begun presenting the ACA as the “current law of the land,” suggesting that the life care plan should include only the maximum out of pocket costs, including any caps, and those services not covered under the ACA. Another potential argument by the defense is that due to the individual mandate, plaintiffs are responsible for the costs of the premiums and therefore premiums are not to be included in the costs of a life care plan. Further, due to the guaranteed issue, the defendant can argue that injured plaintiffs are eligible to purchase health care coverage to pay for their medical costs, and by not doing so fail to mitigate their losses. It is also possible that the ACA will be used as incentive to negotiate settlement, citing the out of pocket costs as substantially less than reported by experts.

The role of the ACA in calculating future medical damages is largely unknown at this time, yet the issue will certainly become more prominent in the near future. Our experts strive to study the issue by keeping abreast of the latest developments in the literature and in the courts, and we are available to discuss this issue further at your convenience.

For a more detailed discussion of the issue, see:

Yagerman & Bookman, 2014
Mitchell, 2015
Matheson, Karraker and Congdon – Hohman, 2015
Congdon – Hohman and Matheson, 2012
We offer complimentary consultations concerning "hypothetical matters". To strategize 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

Defining Physical Limitations

Assessing an individual’s post-injury rehabilitation potential, employability, expected earnings and earning capacity, requires careful analysis of multiple variables. The critical factors considered when conducting a vocational assessment typically include: the individual’s work history, their age, their transferable skills, the highest educational attainment, vocational test results, and physician-assigned physical restrictions. Vocational experts refer to this constellation of data as a vocational profile.

Once an individual is released to return to work post-injury, documented physical restrictions often drive the vocational assessment process as they guide the type of future work an individual can safely perform post-injury. Although physical impairment ratings are often calculated for injured evaluees, these ratings do not directly translate to functional limitations or quantify lost earning capacity in a substantive way.

Although a review of medical records may refer to physical restrictions in general terms such as “light duty work” or “modified work status,” specific information regarding physical and postural limitations are often essential to a thorough vocational analysis. Specific limitations can be outlined by a physician; however, a functional capacity evaluation (FCE) could also more clearly define restrictions. Results of the FCE often include statements regarding validity of the individual’s efforts, and usually clearly identify a Department of Labor physical demand level required for technical discussion of future occupations. An FCE often informs the physician’s opinion regarding physical restrictions and abilities which provides for a more specific discussion of post-injury expected earnings and earning capacity.

We offer complimentary consultations concerning "hypothetical matters". To strategize 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

How to Determine Wage Earning Capacity with Limited or No Work History

We are sometimes asked to assess the vocational outlook and projected earning capacity of someone with limited or no work history. More often than not, these cases involve younger individuals who have been injured, may have a disabling condition, or even have died as a result of a negligent act. So how do we place a monetary value on expected earnings for someone who has never worked or has a limited work history?

Without a work history to guide future vocational projections, these types of cases require a specific approach. For children, the vocational analysis is based on traits, which can be obtained from detailed school records, standardized testing results, or family background including parents’ or siblings’ work history and educational attainment. In a study performed by Isom, Barton, and Halloway (2001) concerning the estimation of pediatric earning capacity, the authors suggest that premorbid earning capacity is best predicted by parents’ level of earnings, and/or parents’ level of educational attainment. Younger children are still in the early stages of career development (Growth Stage-ages 4-13) and (Exploration Stage-early teens to mid-twenties). It may be that during the latter part of the Exploratory stage that more concrete choices or career direction can be defined.

Our vocational experts thoroughly assess the salient file information provided, interview the child/adolescent when available, and conduct collateral interviews with parents/caregivers. We then project an earning capacity that includes specific occupations that the evaluee may have been able to perform but for their injury or illness, and offer potential alternatives that fit within their current or projected vocational profile. Earnings data are obtained primarily from published governmental resources based on age, gender, race, and educational attainment. The earnings data can then be supplied to an economist who calculates wage earning capacity over a work life expectancy.

We offer complimentary consultations concerning "hypothetical matters". To strategize 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 Makes an Expert Witness on the Stand?

There are many factors that can affect the outcome of a personal injury case including the venue of the trial, likeability of the attorneys, the persuasiveness of arguments, makeup of the jury, as well as countless others. An expert witness’ performance on the stand can also be a powerful part of proving a case, yet can be a grave liability as well.

Extensive research has been done by polling juries following verdicts to determine the key issues that impact the way an expert witness is perceived. Tone and cadence of speech (medium volume, good articulation) the color of the expert’s suit (blue is better than brown), and body language (open posture, good eye contact) have all been shown to impact an expert’s effectiveness.

There are three major components to providing exceptional expert testimony that should guide your assessment of a testifying expert’s performance:

Credibility: Does the expert seem like someone who should be believed? Do they have the requisite training, education, and experience to warrant a juror’s attention? A thorough vetting of your expert’s credentials before tendering them can be an effective way to prime the jury that your expert is indeed an expert. Special attention to academic achievements, scholarly publications, and a detailed description of their professional experience is recommended.

Preparedness: Having great educational credentials and loads of experience will not help the expert who is not well prepared. An expert must know the various details of the case, and be able to communicate their method clearly and concisely. Sure the expert can refer to his or her file during direct or cross examination, but the expert who knows the file intimately will present as prepared and serious. Similarly, being prepared will prevent experts from becoming visibly stumped or derailed during challenging cross.

Communication: Our primary role on the stand is to educate the jury, presenting complex information in a clear and simple fashion. Experts who avoid jargon, use real world relatable examples, and steer clear of unnecessary pontification stand a better chance of engaging the jury and holding their attention. For example, turning and facing the jury while responding to a question by an attorney can keep jurors engaged and allow the expert to assess non-verbal cues to determine their effectiveness. This allows for immediate alterations in presentation to ensure quality testimony.

We offer complimentary consultations concerning "hypothetical matters". To strategize 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 The Time Line Of A Vocational Rehab Or Life Care Plan Assessment?

Every new vocational assessment or life care plan assignment begins with an important discussion to determine the basic facts of the case. This gives our experts an opportunity to understand the relevant referral questions and identify how our firm can help. After this initial consult, we conduct a conflict check and confirm important dates such as trial date, discovery deadlines, and mediation date if scheduled.

Once our office officially opens the case, we begin to review file documents such as legal pleadings, medical records, depositions, earnings records, and personnel records. It is extremely important that records are forwarded quickly as the assessment is scheduled only after records are received. Vocational rehabilitation assessments generally require between three and four hours of the evaluee’s time in order to collect relevant medical history, educational history, work history, and in some instances the completion of vocational testing. Life care plan evaluations require a similar amount of time, yet the interview length may vary depending on the complexity of the case.

Following a thorough review of records and completion of the clinical interview and testing, we perform vocational analysis of the work and educational history. This analysis helps determine residual employability and identifies factors associated with wage earning capacity. In developing life care plans or medical cost analyses, the evaluee’s future medical needs are identified and priced (in today’s dollars) using a sampling of costs from vendors in the individual’s geographical area. In most cases, services are based on medical recommendations following consultation with the treating or consulting physicians.

For vocational assessments, research is conducted in the relevant market(s) to identify occupations appropriate to the individual’s post-incident physical demand level prescribed by the treating physician or FCE. Labor market and life care plan research account for the majority of professional time (1/3 to 1/2 total hours) required to produce the final written report. On average, our experts require 30 days to complete a vocational assessment report and 45 days to develop a life care plan. In rush situations, our experts can complete finished reports in a shorter amount of time, yet these instances require the same general number of work hours completed with additional professional resources.

Throughout the evaluation and report completion process, our experts and case managers maintain ongoing communication with you and your staff in an effort to obtain additional information and keep you apprised of our progress.

We offer complimentary consultations concerning "hypothetical matters". To strategize 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 Testing, Why Is It Important?

Vocational testing is a tool used during a vocational rehabilitation assessment. At Stokes & Associates, vocational testing instruments are carefully selected based on the needs of the case assignment and therefore, testing may or may not be necessary. Vocational testing is used to obtain objective information to solidify the vocational expert’s opinion regarding an individual’s rehabilitation potential, employability, and expected earnings post-injury.

At Stokes & Associates, we routinely administer brief intelligence testing, achievement testing, interest inventories and other vocational inventories to develop a granular understanding of the evaluee’s current capabilities.

Brief intelligence objectively measures an individual’s intelligence or ability to learn. Results assist in determining one’s ability to retrain for alternative work post-injury. Findings can also help determine if an individual is a candidate to succeed in further education which may assist in exploring new occupations.

Achievement testing measures an individual’s developed skill or knowledge in a particular area such as reading and math. This is important when determining one’s ability to perform a job that requires a certain level of skill or knowledge.

Vocational interest inventories are useful tools in assessing or exploring an individual’s interest in alternative occupations. Vocational inventories can also be useful to assess and explore an individual’s knowledge about searching for a job, what motivates them to work, as well as their knowledge and understanding of the transferable skills they possess.

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

Anatomical vs Functional Impairment

In the area of personal injury, some of the most important factors in determining a person’s employability and wage earning capacity are the medical condition(s) and any related limitations he or she may have as a result of the injury. Physicians many times are asked to opine as to an anatomical impairment rating which can be defined as:

“a consensus-derived percentage estimate of loss of activity reflecting severity for a given health condition, and the degree of associated limitations in terms of activities of daily living “. The rating system and process are based on The AMA Guides to the Evaluation of Permanent Impairment. The rating of percent of anatomical impairment may be an important factor from a claims perspective and monetary award associated with such; however, from a vocational rehabilitation perspective, it is more important to determine the functional impairment and any corresponding physical/psychological restrictions.

For example, a psychologist and a concert pianist both sustain an amputation to the nondominant little finger. Under the AMA Guides, both have the same “impairment”, 100% of the digit, 10% of the hand, 9% of the upper extremity or 5% of the whole person. However, from a functional standpoint, more probably that not, the psychologist would not sustain any loss of earning capacity whereas the pianist would be totally disabled from that occupation with potential loss of earning capacity.

For a vocational expert, the more important information as it relates to employability and wage earning capacity is the functional capacity/limitations associated with the injury or illness, not the anatomical impairment rating.

We at Stokes and Associates, Inc. have developed a “Physical Capacities Work Restriction” form to assist in obtaining this necessary information from medical providers. To request a complimentary copy of this form to provide to physicians or other medical specialists, please contact David Barrett at dbarrett@stokes-associates.com or 504-454-5009.

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

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