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Contents Dedication iii Foreword ix Preface xi Part I. Foundation Issues 1. Vocational Expert Consultation 1.1 Vocational Expert Consultation 3 A. Matters involving acquired disabilities 5 B. Claims related to the Americans with Disabilities Act 5 C. Employment law disputes 5 D. Family law 5 E. Long term disability insurance 5 F. Other matters that involve vocational opinions 5 1.2 Vocational Expert Services 6 A. Scope of involvement 6 B. Responding to vocational questions 6 1.3 Bases for Earning Capacity Opinions 8 A. Analysis of existing evidence 8 B. Development of new evidence 9 C. Formulating an opinion 9 1.4 Selecting a Vocational Expert 9 1.5 Conclusion 10 2. Methods of Inquiry 2.1 The Expert's Approach 11 2.2 Methods for Conducting an Assessment of Earning Capacity 11 A. Records review 12 B. Subject examination 14 C. The vocational rehabilitation report 37 2.3 Conclusion 38 Appendix A. Client Intake Form 39 Appendix B. Sample Clinical Interview 55 3. Earning Capacity and Loss of Earning Capacity 3.1 Introduction 95 3.2 Factors Affecting Career Development and Earning Capacity 96 A. Commitment to career development 97 B. General factors 101 C. Disability-related factors 104 3.2 Assessing Effect on Earning Capacity 110 A. The Earning Capacity Assessment Form 110 B. Guidelines for assessing present and future loss of earning capacity 113 C. Factor analysis approach to assessment of earning capacity: Three examples 113 D. Unconventional and questionable approaches to assessment of earning capacity: Three examples 118 3.3 Conclusion 120 Appendix 121 Part II. Conducting Vocational Assessments 4. Assessment of Earning Capacity in Cases of Acquired Disabilities 4.1 Introduction 137 4.2 Central Vocational Questions 139 A. Preincident (injury) earning capacity and skills 139 B. Residual functional capabilities and limitations 139 C. Transferable skills, and need and capacity for retraining 139 D. Costs of retraining 139 E. Presence of acquired vocational handicaps 140 F. Postincident (injury) earning capacity 140 G. Loss of earning capacity 141 H. Mitigation 141 I. Future rehabilitative needs 141 4.3 Noteworthy Considerations 142 A. Divergent medical opinions 142 B. Current employment and projections of future earning capacity loss 143 4.4 Conclusion 145 Appendix 4A. Sample Life Care Plan 146 Appendix 4B. Sample Jury Verdict Form 160 Appendix 4C. Vocational Rehabilitation Evaluation 162 5. Assessment of Earning Capacity in Cases Involving the Americans with Disabilities Act 5.1 Introduction 183 5.2 Central Vocational Questions 183 A. Essential job functions 184 B. Reasonable accommodations 184 5.3 Back Pay and Front Pay 185 5.4 Noteworthy Considerations 187 5.5 Conclusion 188 Appendix. Sample Report: Americans with Disabilities Act 191 6. Assessment of Earning Capacity in Employment Law Cases 6.1 Introduction 213 6.2 Central Vocational Questions 213 A. Disruption of career development 214 B. Back pay and front pay 214 C. Mental distress damages 215 6.3 Noteworthy Considerations 216 A. Notice extended to affected employee 216 B. Mitigation 217 C. Severance pay 217 D. Outplacement 217 E. Entitlement sentiments 218 F. Postseverance vocational behavior 218 6.4. Conclusion 219 Appendix. Sample Report: Employment Law 220 7. Assessment of Earning Capacity in Family Law Cases 7.1 Introduction 231 7.2 Central Vocational Questions 231 A. Earning capacity determination 232 B. Retraining considerations 232 7.3 Noteworthy Considerations 233 7.4 Conclusion 234 Appendix: Sample Report: Family Law 235 8. Assessment of Earning Capacity in Cases of Long-Term Disability Insurance 8.1 Introduction 243 8.2 Central Vocational Issues 243 A. Ability to pursue own occupation 243 B. Ability to pursue any occupation 245 8.3 Noteworthy Considerations 246 8.4 Conclusion 248 Appendix. Sample Report: Long-Term Disability Insurance 249 Section III. Forensic Practice Issues 9. Testimony 9.1 The Trial Environment 285 9.2 Trial Preparation 287 A. Reviewing written reports 287 B. Reviewing deposition testimony 287 C. Reviewing extant records and file materials 288 D. Obtaining new records generated after a previous examination or file review 288 E. Conducting an update examination 288 F. Conducting updated labor market research 288 G. Consulting with other experts 289 H. Trial exhibits 289 I. Consulting with attorney about direct examination 289 9.3 Pretrial Conference 289 9.4 Depositions of Testifying Experts 290 9.5 Testifying at Trial 293 A. Direct examination 293 B. Cross-examination 295 C. Redirect examination 298 D. Trial exhibits 298 E. Exhibits from extant records and information 298 F. Exhibits developed by the expert 299 9.6 Conclusion 300 Appendix A. Sample Proposed Direct Examination Questions for a Vocational Expert 302 Appendix B. Sample Scheduled Deposition Letter 306 10. A Case Study 10.1 A Case Study 307 10.2 Conclusion 314 Bibliography 315 About the Author 321 Index 323
Library of Congress Subject Headings for this publication:
Evidence, Expert -- United States.
Wages -- Estimates -- United States.
Work capacity evaluation -- United States.